Male vs. Female Rape Laws – Are sexual predators prosecuted equally?

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The aim of the Law is to protect and present a set of regulations that fairly prosecute those who break them. If anything, this sense of protection is further emphasised in Criminal Law, especially in cases dealing with sexual crime, the nature of it often being extremely emotional and traumatic. However, a further look into aspects of the Law against sexual crime, specifically rape, reveals that we may have some way yet to go, before we can consider rape laws as being equal.

The Law around rape has been revised many times in the past, constantly updated as society demands change. For example, marital rape was not recognised and criminalised in the UK until 1991, and then further outlined in the 2003 Sexual Offences Act [1]. After this, the question arose over recognising male rape, which was finally included in rape law, in 1994, with the victim being made gender neutral, once again, in the 2003 Sexual Offences Act [2]. Although the inclusion of male rape is a step towards equal treatment, the current law defines rape as such: ‘any male to penetrate… a female or male without their consent’, focusing on the requirement of male genitalia, to be classed as rape, which some criminologists have described as ‘phallocentric’. This means that a female, legally, cannot be convicted of rape, but instead sexual assault or ‘assault by penetration’, and also that transgender people are considered by their gender at birth, even if they have undergone any operation [3]. What difference does this make?

Though sexual assault, harassment and rape are serious, sexual assault encompasses a large range of offences, often deemed less serious than rape itself, such as molestation or indecent exposure. The maximum punishment is 10 years in custody [4], compared to life imprisonment as a maximum for rape [5]. Although assault by penetration also results in a life sentence, the boundary between that and sexual assault varies by the Judge’s verdict. As far as the law defines it, a woman cannot be convicted of rape, unless she is an accomplice to a man raping another individual. That leaves the question of inequality in the fact that, if a woman was to force ‘penetration by a male or female without consent’, she would not be, by definition, accused or convicted of rape. This has been the case for many of the female sex offenders in the UK, who have committed ‘sexual assault’, which would be classed as rape if they were male due to the severity of their crime.

There are very few women in the UK who have been charged with rape, such as the 18 year old Claire Marsh, who acted as an accomplice, with up to 12 youths, in the attack and rape of a 37 year old woman. Among this group were two other girls, aged 15 and 18, who were also convicted of rape and given 5 years each in a juvenile facility [6]. This sentencing was only given due to their involvement in, and initiation of the crime with male youths, otherwise the sentencing would likely have been sexual or aggravated assault. The reason that this disparity in sentencing between the genders is so concerning, is that the number of women convicted of sex crimes in the UK tripled in the last decade, according to a 2018 study [7], but no matter how bad the crime is, they cannot be charged with something as severe as rape. Putting this in context, with the wake of the ‘#MeToo’ generation, with more people exposing their abusers, it is worrying to see that many victims may not see their attackers get the punishment that is truly fitting for the nature of the crime.

For sexual crime in particular, society’s condemnation of certain acts, plays a large role in achieving its liberation. The notion to hold women accountable for rape may be the next step to achieving fairer punishment, particularly for male victims with female oppressors. The law’s phallic focus in rape legislation is unexplained, and perhaps can only be justified by the much older expectations of passiveness in women, and, before it was criminalised, the sign of male dominance in rape. Perhaps, as the social stigmas around sex crimes, victimisation and in particular, toxic masculinity, begin to break down, there will be a rising pressure to reform rape law once again, so that the perpetrator may be of any gender, and still be convicted of rape, in a manner that fits our ideals on equality. Rape and assault by penetration outline the same crimes, but apply to different genders. Why is this necessary? Gender should not be such a significant factor when convicting an offender for their crime, and abolishing the difference between ‘male rape’ and ‘female rape’, would be the next step to establishing a fair and equal justice system.


References

  1. BBC News (2008) “Continuing Struggle Over Rape Cases” http://news.bbc.co.uk/1/hi/uk/7244701.stm
  2. Survivors UK “Male Abuse and the Law” https://www.survivorsuk.org/question/male-sexual-abuse-and-the-law/
  3. Bastian Lloyd Morris Solicitors (2014) “Is the Law on Rape Sexist?” https://www.blmsolicitors.co.uk/2014/03/is-the-law-on-rape-sexist/
  4. Sentencing Council UK “Sexual Assault” https://www.sentencingcouncil.org.uk/offences/magistrates-court/item/sexual-assault/
  5. Sentencing Council UK “Rape” https://www.sentencingcouncil.org.uk/offences/crown-court/item/rape/
  6. BBC News (2001) “Female rapist gets seven years” http://news.bbc.co.uk/1/hi/uk/1319211.stm
  7. RT (2018) “Cases of sex abuse by women rocket as boys begin to come forward and report them” https://www.rt.com/uk/420644-sex-abuse-women-children/

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