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?

Oh and I didnt propose those scenarios at all! I was asked to pick which was worse.

I didn’t pick out any cases at all, I agree that comparing individual cases is pointless. The pp posted a case to attempt to prove their point that women are treated more leniently because they are charged differently. I pointed out that this example doesn’t do that.

Many victims of many crimes believe their perpetrator or perpetrators in general are treated leniently, so picking out this individual case also tells us nothing about the bigger picture.

You really don’t understand it at all do you?

You know, the only people I’ve heard suggest babies might not be psychologically scarred by being raped are… rapists.

I can’t offer any advice, i just wanted to tell you how sorry I am to hear that.
I wish your family all the very best.

But the PP is objectivsly correct.

By having distinct offences for rape (by penis) and SA with penetration, the UK's law has created a sentencing disparity that doesn't exist in other jurisdictions.

There disparity is plain in the sentencing guidelines. Although both carry the same maximum sentence, the starting points and the typical ranges are lower for assault by penetration. That means that acts that are broadly equivalent are sentenced differently in the UK, in a way that doesn't occur in other jurisdictions that treat penetration similarly.

That’s not a controversial opinion - it’s exactly what the Sentencing Council’s own guidelines produce.

To add - even in countries that do not make rape a gendered offence (because they don't have the by-penis requirement), where it was by-penis, that is very often relevant to aggravating factors for sentencing.

The difference is that other jurisdictions, with wider definitions of the underlying offence, tend to evaluate pregnancy risk or disease transition risk as the relevant aggravating factors, and the end result tends to be higher sentences for penile rapes but without the more vast disparity seen in the UK.

E.g., in countries without a separate penis-based offence, where a rape occurred by-penis, and the victims vagina were penetrated, there will usually be an uplift for pregnancy risk, that would not be the case for an anal or oral penetration offence.

Rape by-penis would also generally result in an aggravating factor of disease risk, which might vary as between higher risk penetrations (vaginal or anal) vs oral.

The UK is the relative outlier, because it's categorization and sentencing set-up is not based so directly on actual harm and risks, but more a general sense of the "specialness" of the penis. In that sense, it seems more like a holdover of antiquated ideas of degrees of defilement, underpinned by latent sexism.

And, as the PP has repeatedly pointed out, it is women and girls who are by far and away more likely to be victims of all sorts of sexual offence, so it is very fair to say that the UK's approach results in worse outcomes for women and girls compared to jurisdictions that view non-penile penetrations more similarly wrongful in principle, even if risk variance can justify a higher sentence.

It’s not objectively correct to say there is a disparity. They are different offences in E&W law, so there is no disparity. The law in this country does not see those offences as broadly equivalent, and neither do many on the thread.

PP and you are arguing to subsume sexual offences into a single category and pick through aggravating and mitigating factors for sentencing.

I’m not familiar enough with sentencing in jurisdictions with such a broad definition to comment but, as you suggest, pregnancy risk is an aggravating factor. That’s already accounted for in the E&W category of rape. I’d be very surprised to learn that anal or oral penetration with a penis didn’t result in some sentencing uplift in countries that have that broad definition. I will go and read up on it.

So I read up a little on different jurisdictions, and I can see that your point re symbolic recognition of severity could be meaningful for some victims. However from what I can see (on a whistle stop research tour), widening the definition doesn’t necessarily result in more convictions. And E&W generally sentences more harshly across the spectrum (and that’s baked in via the sentencing guidelines, as you say).

So then I can only conclude that neither that nor the current set up is inherently ‘better’ for victims. It depends what a victim wants from the process.