1

According to Wikipedia, rape occurs in English law when "a man penetrates another person with his penis without the consent of the person being penetrated" but any sexual act that does not include a penis is not classified as rape.

This is very counter-intuitive to me, especially since this definition seems to care more about perpetrator's body than about the victim's body (the classification changes if penis is replaced by any other object but does not change according to the orifice being penetrated). The Wikipedia page linked above also mentions the crime of "assault by penetration", which apparenty carries the same maximal penalty as rape but I wasn't able to find any data about minimal or average penalty, or about wider consequences of being charged with either crime (such as being barred from certain jobs or having to disclose one's criminal history in some contexts).

I'm trying to wrap my head around this situation. Do I correctly understand that technically a person cannot be convicted of rape in England and Wales for a sexual assault that did not include their penis? Is "assault by penetration" the same as "rape" for all practical purposes and it's just a surprising naming convention, or is there genuine differece? I'd also love to learn if this naming convention lead to any issues (e.g. rape victims objecting to not having their assaulters charged with rape, etc.).

2

I asked this exact question to my criminal law lecturer.

Rape indeed does require penetration of the mouth, anus, or vagina, with a penis. This is indeed a double standard, as this doesn't recognise many forms of female on male sexual assault as rape. (Though aggravated sexual assault may be a suitable charge in those circumstances, many people argue that a crime as fundamental as rape ought to be

However, there are ways to commit rape if you weren't born with a penis.

  1. An artificial penis counts as a penis for the purposes of this law.

I cannot recall the case for the life of me, but a girl wore a strapon and raped another girl. The court held that the strapon counted as a penis for the purposes of the statute. A person who underwent sex reassignment surgery to become a man, and is given an artificial penis would be able to rape too

  1. A women who "aids and abets" a rape will be charged effectively for rape.

When a person aids and abets another in the commission of a crime, UK law will charge the aider as if it they were the one physically committing the primary crime. This is to equalize punishments among all involved in specific crimes, even if the actual act of rape was committed by another person.

As such, a woman who holds down another woman and helps a man rape that woman will be charged with effectively raping the victim.

1

The crime specifically entitled "rape" under the Sexual Offences Act 2003 is defines as the case where a person A

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis, (b) B does not consent to the penetration, and (c) A does not reasonably believe that B consents.

There is a separate crime called "assault by penetration" where

(a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else, (b) the penetration is sexual, (c) B does not consent to the penetration, and (d) A does not reasonably believe that B consents.

Then there is the crime defined as "sexual assault" defined as

(a) he intentionally touches another person (B), (b) the touching is sexual, (c) B does not consent to the touching, and (d) A does not reasonably believe that B consents.

You should note that A is defined as "a person" and not "a male": use of the masculine pronoun in the statute does not mean that the law only applies to males qua offenders.

The statutory maximum penalty for rape and assault by penetration is imprisonment for life. For sexual assault, it is 10 years in case of conviction on indictment or 6 months plus a fine for summary conviction – this relates to how you are found guilty, with or without a jury (with a jury = conviction on indictment).

It's not entirely clear why assault by penetration and rape are separately defined under this law. In an earlier law, The Sexual Offences Act 1956, the law said "It is felony for a man to rape a woman", and the meaning of rape is not statutorily given. There was also a crime of indecent assault where again the meaning of indecent assault is not statutorily given. The two current sections could have been merged, and maybe there was debate over whether the punishment should be different (that's a history of politics question). From a practical POV, a woman cannot commit rape under the UK definition, so section 2 may be seen as a way to fix that.

  • My guess is that the separate definitions were made in order to have "backward compatibility" with the historical definition of rape at common law, which does not necessarily agree with our present-day use of the word. – Nate Eldredge Sep 18 at 21:22
  • IIRC Nate is correct, but I can find no evidence for that. However, in the independent review SETTING THE BOUNDARIES: Reforming the law on sex offences for the Home Office, there is some discussion of the two separate offences (pages 15-17). webarchive.nationalarchives.gov.uk/%2B/:/www.homeoffice.gov.uk/…. Essentially, the public understanding of rape; offence of penile penetration is of particularly personal kind; other penetrative assaults could be as serious in their impact as rape but the-then present law of indecent assault was inadequate. – Lag Sep 19 at 10:22

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