This week I’ve seen at least 4 self-IDed feminists make arguments along the lines of “women can’t rape; rape requires a penis” and I just want to say why this is a terrible, anti-feminist position which is actually worse than current English law. CNs for rape & SA in thread below

Way back in 1976, Lord Cross stated in the case of DPP v Morgan that “rape is not a word in the use of which lawyers have a monopoly”, a point worth bearing in mind. So I’ll say a some incomplete but long-winded words about the law now.

Firstly, the current definition of rape in found in s1(1) of the Sexual Offences Act 2003: penetration of a vagina, anus or mouth with a penis: http://www.legislation.gov.uk/ukpga/2003/42/section/2/2009-11-12

History sidebar: rape at common law was PIV only, anal rape was typically charged as buggery, an offence for which consent was irrelevant and which included anal & vaginal penetration of animals.

Following the decriminalisation of consensual private anal sex for men over 21 in 1967, non-consensual anal penetration was only added to the offence of rape in 1994 (s 142, Criminal Justice and Public Order Act).

The inclusion of oral penetration in the definition only occurred in 2003 with the current definition, when the requirement of “reasonable” belief in consent was also added.

C20 legal history has been a constant process of re-defining the law on rape. Current offences were extensively overhauled following a 2000 Home Office consultation, where the existing law was found to be too gendered (Ch6 p97): https://webarchive.nationalarchives.gov.uk/%2B/:/www.homeoffice.gov.uk/documents/vol1main.pdf%3Fview%3DBinary

This, you would think, was a positive development of decades of feminist campaigning in this matter - state recognition that grave sexual offences which didn’t look like PIV were unequally treated. Rape had & still has a maximum sentence of life imprisonment (death before 1841).

“So what?” you may think. “T€RFs are right, the law requires a penis.” BUT WAIT. S2 of the 2003 Act creates the offence of assault by penetration - with any other body part or anything else.

It has the same maximum sentence as rape: http://www.legislation.gov.uk/ukpga/2003/42/section/2/2009-11-12

People without penises have already been convicted under S2, as in R v McNally [2013], a case which (rightly) caused many trans people extreme concern because of its reasoning on deception and consent. Nevertheles, as it now stands this offence is broadly equivalent to rape.

There are also multiple other sexual offences, including s4, causing a person to engage in sexual activity without consent, an offence which includes making a person penetrate someone else: http://www.legislation.gov.uk/ukpga/2003/42/section/4/2009-11-12

S3, sexual assault, relates to intentional sexual touching: http://www.legislation.gov.uk/ukpga/2003/42/section/3/2009-11-12

this is narrower than the previous 1956 offence of indecent assault as it requires physical touching. Both S3 and S4 offences have a maximum penalty of 10y imprisonment.

I note the disparity in sentencing in crimes which necessarily involve penetrating someone and crimes which need not. It is worth considering this disparity and it’s reasonings through a feminist lens imo, not least because of what it states about who & what is valued.

Furthermore, there is an enormous body of law on accomplices, where people help others commit offences. The infamous canal rape case led in 2001 to the conviction of a woman, 18yo Claire Marsh, for rape, under the previous legislation: https://www.theguardian.com/uk/2001/mar/17/sarahhall1

I don’t want to dwell on accomplices as it’s immense & complex but suffice it to say that some acts of assistance may attract the same level of maximum penalties as the main offence. See, for example, preparatory offences in the 2003 Act: http://www.legislation.gov.uk/ukpga/2003/42/part/1/crossheading/preparatory-offences

TLDR: even our crusty musty patriarchal old legal system recognises and (sometimes) punishes women’s culpability in rape and rape-equivalent offences. People without penises are excluded from only one of many sexual offences.

So, onto my actual point, are T€RFs really attempting to paraphrase that narrow s1 definition from 2003 when they say “women can’t rape” or are they engaging with the broader use of the word ‘rape’ that Lord Cross made reference to, 42 years ago? I WONDER

Feminist campaigning to reform or eradicate the inequities of laws on sexual offences are an omnipresent demand. Many of the more recent redefinitions of the legal term followed horrifying cases where survivors of eg anal, oral or object rapes found the law not to protect them.

Just imagine having a feminist position on rape narrower than one mentioned in a remark by an old white male judge almost half a century ago, and being proud of it.

Such feminist pressure (as transitional demand) around sexual offences is entirely right and proper ofc. Many T€RFs are tbf deeply involved in justice campaigns around sexual violence themselves - but to what end?

Did they think forced oral sex was rape before 2003? I hope so.

“Women can’t rape” is part of a mindset which places an essentialist and biological reasoning on sexual violence.

Few people deny the huge gender imbalances in sexual offences but such a position makes people subjected to less easily-read forms of violence even more vulnerable.

If you want recent ONS figures on recorded sexual offences in England & Wales, go here:

https://www.ons.gov.uk/peoplepopulationandcommunity/crimeandjustice/articles/sexualoffencesinenglandandwales/yearendingmarch2017#what-are-the-long-term-trends-in-sexual-assault

Note that the state’s definitions of gender may be insufficient, partial and sometimes wrong.

Even if people making the “women can’t rape” claim believe they’re doing their best for cis women, it seems clear from the evidence of history that cis women were and are still greatly disadvantaged by narrow concepts of rape. Nose, face, etc.

If a person tells us someone raped them with fingers or an object, do we say “I’m so sorry somebody raped you” or do we say “actually I think you’ll find that’s a S2 offence so it’s not rape”? This feels like a pretty basic test for feminism to me.

FWIW I’m not seeking to defend the criminal justice system as a method of seeking justice for sexual violence, since it’s infamously terrible to this day. Even when the law appears to progress, cases such as that of Ch*d Ev*ns show how limited that can be without social change.

But if one is nevertheless using the law as a starting point, one must also accept that that law has changed a lot, in a few decades, and that even it is more nuanced than “penis = rape” implies. Little faith though I have in such change, I do think that’s more positive than not.

However, it should be blindingly obvious that a feminist position which can’t go beyond that of the criminal justice system is a poor feminism indeed. That system fails survivors constantly, by both design & implementation.

I’m not really best placed to talk about this but there is of course a whole lot on intersecting oppressions and proximity to violence to be considered. The notion that rape culture is just about what genitals people have is ludicrous.

Yes, most sexual violence is carried out by men. But women are also capable of it - even rape, by any feminist understanding. Some women commit the violence in person, but many more do so structurally and/or epistemically, in their aid, support and complicity for men’s violence.

(I am using a man/woman binary here because that’s at the core of both legal and T€RF definitions. I don’t agree with it, I’m not tying it to bodies, but that’s the argument under consideration - and even here, the actual law is the more progressive body of thought of the two!)

T€RF rhetoric seeks always to distinguish women’s actions from men’s, even as they directly encourage said violence against trans women and contribute to the structural violence.

“It’s not us, it’s the violent men doing it, talk to them!” they insist, washing their hands.

Implication being, “we can’t be violent BCOS we’re women”

“Women can’t rape” is both legally dishonest & nonsense as a feminist position. It is not a position of radical action but one of dissembling and of violence-inflected reaction. It discourages accountability in every way.

An honest appraisal of women’s (particularly white women’s) role in structural sexual violence is essential to any meaningful praxis. “Women can’t rape” ain’t it chief, not by a long shot. Dump this narrative.

FIN

Thank you all.

PS the history of sexual offences in Scotland and Northern Ireland is different, I haven’t tweeted about that bcos honestly it’s out of my bailiwick.

That said, I don’t think my views on this change by jurisdiction, local nuances notwithstanding.