I will first outline the legal definition of rape in England and Wales, Footnote 5 before considering three potential ways of justifying the PPC that I argue do not work: (1) it is physically impossible for a woman to rape a man (2) it is a more serious offence to forcibly penetrate someone than to force them Footnote 6 to penetrate you (3) rape is a gendered crime. The structure of this paper will be as follows.
Therefore, I argue that the legal definition of rape should be changed to something like David Archard’s ‘sex-without-consent’ Footnote 3 or Sweden’s gender neutral ‘enforced sexual intercourse.’ Footnote 4 This would not only rectify the asymmetrical legal situation it would also force us to question some of the widely held problematic attitudes regarding gender and sexuality of which the PPC is both a cause and a consequence. Furthermore, the PPC reinforces harmful gendered sexual stereotypes, in particular that, rather than being something men and women do together, that sex is something men do to women. Footnote 2 In this paper, I will argue that the penile penetration condition (henceforth the PPC) of rape represents a double standard in the law, and cannot be justified. The Sexual Offences Act 2003 made the victim of rape gender neutral (so no longer differentiated between ‘rape’ and ‘male rape’), but maintained the requirement of penile penetration for a charge of rape, meaning that a woman cannot rape a man or another woman. If a man had sex with another man without his consent, the crime was buggery, and the maximum penalty was 10 years, compared with life imprisonment for rape. Male rape only became recognised as a crime at all in the UK in 1994 prior to then, rape could only be committed by a male against a female. Therefore, I suggest that, if rape law were made gender neutral, these stereotypes would be undermined and this might make some (albeit small) difference to the problematic ways that sexual relations are sometimes viewed between men and women more generally.
I argue that, not only is it unjust, it is also both a cause and a consequence of harmful stereotypes and prejudices about male and female sexuality: (1) men are ‘always up for sex’ (2) women’s sexual purity is more important than men’s (3) sex is something men do to women. I then explain some further reasons that this matters.
I argue that, as these justifications fail, a woman having sex with a man without his consent ought to be considered rape. I first reject three potential justifications for making penile penetration a condition of rape: (1) it is physically impossible for a woman to rape a man (2) it is a more serious offence to forcibly penetrate someone than to force them to penetrate you (3) rape is a gendered crime. This paper argues that this is an unjustified double standard that reinforces problematic gendered stereotypes about male and female sexuality. Under current UK legislation, only a man can commit rape.