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Is the Law on Rape Sexist?

A favourite question for criminal law students is ‘can a woman rape a man?’ Curiously the answer is yes, no and maybe!

Physically, a woman cannot rape a man because of the how the offence is defined in law. Rape, in English law, requires a penis to be inserted into a woman’s vagina, anus or mouth without her consent and knowing that she does not so consent. This requirement has caused some criminologists to describe the law as being ‘phallo-centric’ or ‘phallo-genic’. Whilst inserting an object or another part of the body into one of the afore-mentioned orifices is a serious sexual assault, it is not classified as rape. Only men can commit the offence of rape as a principal. Interestingly, pre -operative male transgenders can commit the offence because they are still legally male, whereas post-operative female transgenders cannot commit the offence because they are still legally female.

A woman can legally rape a man however if she acts as an accomplice. So if X (a woman) assists Y (a man) to put his penis into Z’s mouth against her will, then X is as guilty of rape as Y is. Even where the woman is not proximate to the rape victim she could still be convicted as the law on conspiracy and aiding and abetting is flexible enough to cover all sorts of scenarios. The most obvious situation is where ‘geezer bird’ gang members are part of the posse encouraging a fellow gang member to take sexual liberties with a hapless victim.

If a man has sexual intercourse with a minor that would satisfy the definition of rape as children under the age of 16 cannot lawfully consent to sexual intercourse. However when a woman has sexual intercourse with a minor she is committing a serious sexual assault rather than raping her victim.

If a man has sexual intercourse with a sleeping woman (even his wife) he technically rapes as her as consent can only be given when conscious in relation to that specific time. The only possible exception to this general rule would be where the parties have agreed that sexual intercourse may always take place whenever the woman is asleep. A woman who has sexual intercourse with a sleeping man (even her husband) technically commits a serious sexual assault for the same reason. She does not rape him however.

It is not apparent why the law focuses on the requirement that a penis is needed to commit the offence of rape. It is fairly easy to construct a theoretical argument where a woman could use her vagina to ‘rape’ a man. If she, for example, tied his arms and legs to a bed and then placed his penis in her vagina against his will, it is difficult to see why that is less offensive than the converse. The fact of an erection in those circumstances would be irrelevant, since a man’s erection is a physiological response to visual, emotional, intellectual or physical stimulation and not necessarily a consent to sex. Nor would his subsequent ejaculation be seen as a mitigating or exonerating factor in those circumstances. All of this is theoretically possible in the right circumstances and under the determination of a single-minded woman. Whether it is realistically likely is another story however.

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