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Is forced cunnlingus or analingus, "legally" considered rape or is it sexual assault?

Any case would involve the

  1. The perpetrator forcibly performing cunnlingus/analingus on the victim

or

  1. The perpetrator would force the victim to perform cunnlingus/analingus on them

Obviously either two of these scenarios would be a crime one way or another.

So most rape laws (I think in US states and UK especially), require penetrative acts to be unwillingly forced on the victim. So either of these cases would not be classified as "rape" if that were the case. Are there any jurisdictions where this is not the case?

Is the severity of the offense (1) or (2) equivalent to that of forcible penetrative acts or is it a lesser offense?

Although I have no specific jurisdiction in mind, what is the case in most jurisdictions?

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In the United States, each state is free to define their own version of what is rape and what is sexual assault. Many States view rape and sexual assault to be of "equal severity", but they are punishable under different laws.

For example, Kentucky defines rape as any non-consensual intercourse and includes anal sex and object penetration in the definition of intercourse. Alaska does not define rape in its criminal code but all forms of unwanted sexual penetration (by object or other) under sexual assault charges. New York defines rape as sexual intercourse without consent and all other unwanted contact under sexual assault.

enter image description here Source: takepart.com

As you can see, the definition of rape and sexual assault is either combined or broken out into separate laws. In most States though, the punishment for either rape or sexual assault is considered the "same severity".

Under Federal crimes, rape is not defined but is grouped under 18 US Code 2241-2248. Punishment for these crimes range from a fine through life imprisonment.

So for the United States, your (1) and (2) either may be classified as "rape" or "sexual assault" but the severity of the offense and the punishment is usually equal under the eyes of the law.

Taking New York for example...

Sec. 130.00 defines terms
Sec. 130.50 Criminal Sexual Act in the First Degree
Sec. 130.52 Forcible Touching
Sec. 130.35 Rape

130.50 (Criminal Sexual Act, which (1) and (2) fall under) is a Class B Felony, so is 130.35 (Rape). They all fall under Sec 70.80 for sentencing, which says that a Class B Felony must be a term between 5 and not exceeding 25 years.

You can look up the laws in other States, but many follow the same pattern, either they lump sexual assault and rape under the same law, or they break them apart into distinct "rape" and "sexual assault", but use the same sentencing guidelines.

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  • My understanding of the question is that it's asking if a non-penetrative assault would be included under these laws. I believe NY, for example, does have such laws (see, e.g., statelaws.findlaw.com/new-york-law/…) but I'm not sure that the laws about unwanted sexual penetration cover this. That said, I think 130.52 (which you mention) is probably the right one.
    – Ryan M
    Mar 20 at 3:40
  • I'm not sure I follow your comment.. you say that you believe NY has those laws (and are cited in my answer), but then you say you aren't sure if they cover it? Can you elaborate why you may think that 130.50 using the definitions from 130.00 don't cover the scenario outlined in the question? Or am I misunderstanding?
    – Ron Beyer
    Mar 20 at 3:45
  • Hmm, no, I think you're right that those laws cover it, actually. I was too focused on the comments around penetration, which isn't present in this scenario, but I agree that 130.50 with the definitions in 130.00 seems to cover this.
    – Ryan M
    Mar 20 at 3:49
  • I felt it was relevant because that is the defining line between "rape" and "sexual assault" in many states.
    – Ron Beyer
    Mar 20 at 3:50
  • 1
    Yeah, that's fair. I think you're correct, and I've upvoted.
    – Ryan M
    Mar 20 at 3:52
2

Rape has been abolished

Section 80AD(1) of the crimes Act 1900 says:

The common law offences of rape and attempted rape are abolished.

However, cunnilingus is defined as SEXUAL INTERCOURSE under s61HA(c). A person who knowingly has SEXUAL INTERCOURSE without consent is guilty of Sexual Assault under s61I.

2

The Sexual Offences Act 2003 applies. Rape requires penetration by "his penis" which while it raises interesting questions about transsexual people, isn't relevant here. What is described is not rape.

Section 2 describes penetration by anything else. While it's "assault by penetration", it carries the same sentence of life imprisonment. If the tongue was used to penetrate, this section applies.

Section 3 relates to any other non-consensual sexual touching. This carries a maximum sentence of ten years' imprisonment.

So situation (1) of the question could indeed be treated as the same severity as rape, depending on what was actually done.

Section 4 relates to forced sexual touching as in situation (2). Since the victim is not penetrated, the perpetrator is liable to ten years' imprisonment. If the victim is penetrated, it's treated with the same severity as a crime under Section 2.

Scotland's offences under the Sexual Offences (Scotland) Act 2009 are essentially the same, but they specifically enact for transsexual persons and the maximum penalty for offences under Sections 1 to 4 is life imprisonment. While what is described in the question is not rape in Scotland, Scotland does treat the question's two scenarios as potentially being as severe as rape.

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