[TRIGGER WARNING for descriptions of rape.]
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What is ‘rape’? It’s not as simple as you think. *TW*
I have had a couple of requests to define what rape is, so I wrote this up. This definition is as described by the Sexual Offences Act (SOA), including some of my own hypothetical examples. This does not explore how cases are interpreted or received or ruled on in court; this definition only refers to what is contained in this law. (I might look at issues in the courts at a later date.)
The SOA defines rape (s3) as:
Any person (“A”) who unlawfully and intentionally commits an act of sexual
penetration with a complainant (“B”), without the consent of B, is guilty of the offence of rape.
Seems simple, right?
It really isn’t.
Rape is not limited to cases where a man forced his penis into the vagina of a woman who said “no”.
The act also defines what “sexual penetration” means and cases where consent cannot be given. Let’s start with what exactly “sexual penetration” means.
Sexual penetration is the penetration of any object into or beyond the genitals organs or anus.
Genital organs are defined as the vagina or penis, including surgically constructed or reconstructed genitals. (This is particularly important in cases of sexual violence against transpeople.)
Sexual penetration includes penetration into or beyond the genital organs or anus using any human body part (e.g. the hands, genitals); animal body parts; or objects.
Forced oral sex is rape, regardless of the gender of the perpetrator or the victim.
If a woman performs oral sex on a man without his consent, that woman raped him. If a woman performs oral sex on another woman without her consent, the first woman raped the second woman. If a man forces a woman to perform oral sex on him, that man raped her.
This definition of rape means people who have been molested are, legally, also rape victims/survivors.
We have established what “sexual penetration” means. We now need to talk about when a person cannot give consent to sexual penetration.
Consent cannot be given in circumstances where, at the time of the sexual act, the victim could not appreciate that nature of that act, such as when:
- the victim is asleep,
- unconscious,
- or in an “altered state of consciousness” as a result of the victim’s consumption of any medication, drugs or alcohol to the extent that the victim’s consciousness or judgement is adversely affected. [The act does not specific a 'limit' here, but I have to ask: if you are too drunk to drive a car, are you also too drunk to give consent?]
If a person is drunk/high/doped up, ze* cannot consent to a sexual act.
People who can never, under any circumstances, give consent:
- A child under 12 years old, or
- A person who is mentally disabled (as defined by the act as someone who can’t resist the sexual act or doesn’t understand the nature of the act.)
Basically, the SOA implicitly suggests that if you rely solely on passive consent when engaging in a sexual act with another person, it is quite easy for you to become a rapist. This is not supposed to be a negative thing – the Act is implicitly advocating that we should have open, clearly verbalised and uninhibited consent before we engage in a sexual act with another human being. We need to negotiate consent with our sexual partner in a way that ze feels safe and respected, when our partner is completely sober and clear-headed.
We should all have enthusiastic consent from our partner(s), rather than assuming passive consent.
There should be no chance for mixed messages.
Passive consent runs with the idea that you should ‘opt-out’ of a sex act, rather than ‘opt-in’. We cannot assume that someone will say or able to say ‘no’ when they do not consent. This is why “no means no” campaigns are problematic. The absence of a “no”, does not mean you have consent.
Just because someone didn’t say ‘no’, doesn’t mean it was consensual, and it doesn’t mean it wasn’t rape.
If you want to be absolutely sure you are not assaulting or about to assault someone, you need to negotiate explicit consent with that person by actually asking them, in a non-threatening and supportive way, what they consent to do.
*ze is a gender neutral pronoun.
What is Rape...
Do we KNOW? Do we really understand?
Michelle Solomon delivers her view..
Follow Michelle's blog: http://journoactivist.com
Twitter: @mishsolomon
Picture courtesy of http:journoactivist.com.
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