Why can't women be charged with rape?

[Ourlovelyson]

My son attempted to take his life last year. Turns out his partner has been abusive and she was drugging him with Viagra being him aroused and sitting on top of him he kept telling her no but she did what she wanted to do. But rape is defined by the penetrating male, my son is not the person he once was.
I have been on Google for weeks and I can't find anything to help him. He obviously isn't the only one.
Why is this?

No i wouldnt call all SA rape, I'd call all forced sex, rape. So if you force oral sex on someone, or force them to do it to you, penetrate them (with anything) anally or vaginally, or force them to penetrate you (with anything), that would all be rape.

Sexual assault would be all other nonconsensual sexual contact.

Fair enough, that's where we differ.

I think that the availability of nuanced language is useful and important so I'd rather have more terms rather than fewer.

If you wanted to specifically carve out forced sex or oral sex that doesn't include penetration perpetrator to victim (which would be female perpetrator only, in effect) from sexual assault I'd be perfectly happy to have a further sub-category for that, but not to roll it all up into one lump with other things.

I’m giving up with you because you’re either being very obtuse or you genuinely don’t get how the law works

Where are you getting that from though? The spectrum of available sentencing for those separate offences is so huge it's impossible to calibrate one against the other.

If an offence of rape is sentenced to 4 years and sexual assault 2 years, that doesn't mean the offences were comparable in terms of categories of seriousness. The rape could fall into higher culpability and harm than the sexual assault, so you're sentencing against different criteria.

No, they wouldn't be able to call women rapists. They can call them sexual offenders, sexual perpetrators or sexual abusers, but not rapists.

There is a category of sex crime that is unique in that it has the potential to cause unwanted pregnancy and all the harm that may flow from that - regardless of whether the victim can actually become pregnant, or whether the perpetrator takes steps to avoid causing pregnancy. By that definition, it can only be committed by a man. So it's important to have a category that captures the characteristics of that offence that make it distinct from other sexual offences in terms of its potential to cause that specific harm.

Assault by penetration and sexual assault are perfectly adequate categories to capture all other types of sexual offences. And carry similarly weighty sentences to rape.

Individual cases will weigh the facts and the evidence to determine the category of seriousness of offences by looking at culpability factors and types of harm caused, and will be sentenced on that basis. Obviously the scope for variation in determining culpability and harm is very broad and will be different for each case.

Taking into account all of the above, whether rape is 'worse' than sexual assault or assault by penetration is a semantic argument.

But our current laws don't categorize on the basis of whether the illegal act can result in pregnancy, and are already broader than that. They include oral or anal penetration-by-penis, of either men or women.

I do appreciate the argument that pregnancy risk is sufficiently unique to justify special categorization, but if that's the threshold for defining "rape", the UK's legal definition would actually need to be significantly narrowed, as no "pregnancy risk" category currently exists.

You could just as easily keep or widen the definition of rape and create a special category within it, and I'm inclined to think that best.

My ex was raped by a female friend when drunk and high and she went on to have a child he didn’t want.

I provided a source

Risk of pregnancy has nothing to do with the definition of rape! This is all in the mind of you and others.

No I understand how the law currently is and why it is that way as well as why it is changing and has changed in other countries. I am saying we should hurry up and do the same so we stop trying to categorise victim trauma based on our subjective beliefs about what type of violation is more traumatic for victims.

I suppose the only logical way to sub-categorise would be to create separate offences for rape of a woman (non consensual penetration by a penis, can get pregnant) and rape of a man (any type of non consensual penetration with own penis or by another’s penis, cannot get pregnant). You’d still have to limit it to penile penetration otherwise you end up unwittingly collapsing the assault by penetration offence into the male rape definition. Meaning you’d have to create a separate ABP offence for women.

In theory you could do all of the above but it seems unnecessarily complicated, when the defining factor of the offence must necessarily be penile penetration if you are to avoid folding in ABP. Which circles you back to the start - an offence definition that’s broad enough to cover male and female victims but limited to the act of unwanted penetration with a penis.

It absolutely does. Read some jurisprudence.

Or you could just call all forced sex rape, and if people really want risk of pregnancy to further increase the sentence, such as guaranteeing a life sentence, then so be it.

The legal definition of rape doesnt mention pregnancy at all.

It wouldn’t be classed as rape but it would definitely be classed as sexual assault your son needs to speak to the police. I’m so sorry he’s going through all this.

It’s not about the statutory definition, it’s about the philosophical reasoning behind defining the offence in the way it’s defined.

Then the natural effect of that would be to say essentially that rape of a woman would carry a higher sentence than rape of a man.

No it wouldn't, because his defence team could disprove that there is a risk of pregnancy and eradicate that as an aggravating factor in sentencing.

The law isnt based on any philosophy that says that risk of pregnancy makes a secual offence more traumatic or otherwise worse, thank God.

I really don’t know how many times to say this: the law doesn’t work like that. Court cases are about the crime itself and evidence, there’s no time for philosophical waffle on it being a Not As Bad As It Could Have Been rape because she couldn’t get pregnant. The whatabouttery to think of ways to reduce rapists sentences is getting very cringe now

I'm not sure though. Being assaulted some other way could be just as upsetting.

Hmm, I don't it's any less bad. They're still choosing to force you to do something you don't want for their sexual pleasure.

But clearly that isn't accurate since men can be rated by other men legally, there's no risk of pregnancy there.

But much simpler to remove the need for that at all by just keeping the offence of rape as it is.

all of your arguments seem to be premised on the false assertion that rape is somehow worse than sexual assault or assault by penetration. And that to have been a victim of SA or assault by penetration isn’t as bad as having been a victim of rape.

that argument is utterly semantic. there is no hierarchy in the sexual offences. Being a rape victim is not more meaningful or impactful than being a victim of assault by penetration or serious sexual assault. ABP and rape both carry the same maximum sentence. One is not worse than the other. They are just ways of categorising different types of sexual offences.

'It's also more of a violation, in a very literal sense. One's body is actually being invaded.'

• I'm understand that point but otoh I'm uncomfortable with ranking pain from assaults. Who's to say many men who are forced to penetrate don't feel just as invaded?

'I also think that if you gave a man a choice between being forced to penetrate another man, or being anally penetrated by the man, he'd choose to be the one penetrating every time' - I think muddying the waters here is that most men are not attracted to men at all. So there would be an extra sense of violation probably from that.

Otoh if you asked a man whether he'd choose to be forced to penetrate a woman, or be forcibly penetrated by a woman wearing a dildo, the answer might generally be the same.

I don't want to assume though. I'm not a man but I can imagine that being forced to penetrate would feel pretty invasive too : a very intimate part of your body being forcibly enveloped by the assailant.