Does The Legal Definition Of Rape Need Updating?

By Hannah Shewan Stevens, Freelance Journalist 17 Aug 2021
Discrimination, Justice
Credit: Priscilla Du Preez / Unsplash

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The current legal definition of rape means that victims of sexual assault without penile penetration cannot technically claim the word, feeding the stigma felt by some survivors. 

According to the legal definition, sexual assault by someone without a penis cannot be rape, however extreme the violation. This narrow description of rape could be considered an infringement of Article 14 of the Human Rights Act, which protects people from discrimination based on, for example, their sex or gender.

Simon Spence QC, a barrister with Red Lion Chambers, says: “Rape, as defined in Section 1 Sexual Offences Act 2003, is the intentional penetration of a vagina, anus or mouth by a person of another person by that person’s penis in circumstances where the other does not consent and the person does not reasonably believe that the other consents. The fact that it must be by a penis means that it can only be committed by a male, although it does not matter whether the other person is male or female.”

In the year to the end of March 2017, the Crime Survey for England and Wales estimated that 20% of women and 4% of men had experienced some type of sexual assault since the age of 16. However, there are no reliable statistics on the number of people who have been sexually victimised by someone without a penis, whether a cis woman, a trans woman or someone who is non-binary.

An estimated 85,000 women and 12,000 men (aged 16-59) experience rape, attempted rape or sexual assault by penetration (with something other than a penis) in England and Wales per year, meaning that on average about eleven of the most serious sexual offences take place every hour. 

However, these statistics lack insight into the prevalence of sexual assaults committed by people without penises, as these crimes are not legally defined as rape. This definition could be seen as discriminating against survivors of sexual assaults that do not involve penile penetration.

That law definition omits survivors from classifying what they’ve experienced as rape if it’s not with a penis

The UK’s legal definition of rape corresponds to certain dictionary descriptions, which include references to penile penetration. However, others define rape more broadly as “unlawful sexual activity and sexual intercourse carried out forcibly or under threat of injury against a person’s will”. The latter definition encompasses the full spectrum of sexual violence, allowing survivors to claim the word to define their experiences – even if the law does not reflect it. 

“The way we as a society, the media, governments and local authorities talk about rape is in very gendered language, so it often falls under the Violence Against Women and Girls strategy,” explained Alex Feis-Bryce, CEO of Survivors UK, a charity that supports sexually abused boys and men. “That law definition omits survivors from classifying what they’ve experienced as rape if it’s not with a penis. It definitely needs to be looked at and it definitely does have an impact on survivors.”

Under present law, a woman could be guilty of rape as a secondary party, for instance by holding the person down to assist the other party in penetrating the victim. 

Spence continued: “Section 2 is assault by penetration with something other than the penis and Section 3 is sexual assault without penetration. Arguably, a woman who forces a man against his will to penetrate her would be guilty of a Section 2 offence, although, as far as I am aware, there has never been a prosecution in these circumstances.”

For those victimised without penetration, Section 4 of the Act includes “causing sexual activity without consent”, which encompasses any non-consensual sexual activity and, while sentences change depending on whether there is penetration or not, people of all genders can be prosecuted. 

However, sorting sexual crime by severity and penetration can feed the belief that certain types of sexual violence are somehow less impactful. Feis-Bryce, who has worked with many survivors, says that he has encountered several people who questioned their own experiences because they felt theirs were “lesser” than others.

He said: “The idea of not being able to get an erection [when being assaulted] is a significant rape myth around male survivors, so having this hierarchy of violation definitely disempowers survivors.”

The stigmatisation of sexual assaults for men is, I would suggest, more a matter for changes to social thinking rather than legislation

Although updating the legal definition of rape to include a wider range of sexually violent experiences might reduce the stigma some victims feel, this process would be highly complex.

A photo of police tape

Credit: Flickr / Ian Britton

“The current legal definition of rape is contained in the Sexual Offences Act 2003, which is primary legislation,” said Spence. “Primary legislation can only be amended by other primary legislation, and so it would require a new Act of Parliament. The passage of the 2003 Act through Parliament was tortuous and many lawyers think it is a very unsatisfactory piece of legislation. It is difficult to see how it could be updated to ‘protect’ men more.”

Spence added: “The stigmatisation of sexual assaults for men is, I would suggest, more a matter for changes to social thinking rather than legislation. Rape is seen very much as an ‘active’ offence rather than a ‘passive’ offence, which it would need to be for women to be guilty of raping men.”

Specialist services for male survivors do exist, particularly for queer men with organisations like Galop, but gaps in services remain, especially for LGBTQ+ people and those who are abused by women. Improved and funded services would ensure survivors can access support without judgement, regardless of their gender or the gender of their attacker. 

The origin of the word ‘rape’ is complicated but one of its meanings was to “sexually violate” or “defile”, not necessarily in relation exclusively to women as victims. Updating the legal definition of rape to reflect the full spectrum of sexual violence that all genders experience could reduce the stigma for some survivors of sexual assault and help them all get the justice they deserve.