A New Approach to Non-consensual Oral Penetration

Abstract

The Sexual Offences Act 2003 extended the definition of rape to include oral penetration for the first time. This appears to be inconsistent with common understandings of sex and rape, and I submit that this mismatch between ordinary and statutory conceptions of rape undermines the principle of fair labelling and the aims of criminal justice, and likely contributes to attrition. I call for a new offence of non-consensual oral penetration – retaining the maximum life sentence but avoiding the word ‘rape’ – for assaults of this kind. I propose that this change would improve results for victims and perpetrators, and better reflect public perceptions. Categorising a sex offence as something other than rape may also make it easier to reach a conviction, but I argue that gender justice is not served by working towards increased convictions, which is neither a likely nor, perhaps, desirable outcome of feminist law reform.

Introduction

Rape, like all crimes, is a legal construct. The word has no fixed meaning, and the scope of the offence varies widely between jurisdictions and over time. Rape seems to be universally recognised as a harm unlike and, some might say, more serious than any other. It is striking, then, that its definition should be so changeable. In England and Wales, the scope of rape has altered significantly – always expanding, never contracting – and after a period of rapid development between the early 1990s and the early 2000s, is now broader than ever. While it is right that the law should recognise serious sex offences as deeply harmful and blameworthy, frequent changes to the definition have created confusion, relying on shifting and apparently arbitrary distinctions as to which assaults do and do not amount to rape. A 2018 survey of 4000 British adults commissioned by the End Violence Against Women Coalition revealed that many people are now unaware of what constitutes rape. ¹

The purpose of this paper is not to suggest that non-consensual oral penetration is less serious than vaginal or anal rape. Rather, it is submitted that rape's expanded scope under the Sexual Offences Act 2003 (hereafter ‘the Act’) has created a discrepancy between the legal construction and the ordinary understanding of rape, and that this inconsistency presents problems for fair labelling and offender rehabilitation, and may be a factor in rape case attrition. I demonstrate below that victims, jurors, and perpetrators are all less likely to regard non-consensual penile-oral penetration as rape, compared to penile-vaginal or penile-anal penetration, and that creating a new specific offence for these assaults that avoids the word ‘rape’ would better reflect public perceptions and may improve outcomes for both parties to such offences.

Defining Rape

Rape has traditionally been understood, both legally and socially, as penile-vaginal intercourse without consent. ² Other sexual violations are not described in this way, and are typically treated as separate offences, though they may attract the same sentence and be equally harmful. For example, under the present law set out in the Sexual Offences Act 2003, if D uses her fingers to penetrate the vagina or anus of another who does not consent, she commits s.2 assault by penetration. If D compels another who does not consent to penetrate her (D's) vagina or anus, she commits s.4 causing a person to engage in sexual activity. Oral stimulation of any part of the victim's body in which they are not penetrated is s.3 sexual assault. The illogic of these distinctions is discussed below.

A full history of rape is beyond the scope of this article, but it is worth reminding ourselves of how much has changed in a few decades. Only 35 years ago, rape was limited to heterosexual extramarital intercourse without consent. ³ There was a common law presumption that husbands could not rape their wives, on the basis that consent to marriage included consent to intercourse throughout the marriage. ⁴ Interestingly, this never extended to oral sex, which was always treated as a separate act. ⁵ In the early 1990s, the ‘common law fiction’ ⁶ of the marital rape exemption was abolished. ⁷ This was later reflected in the Criminal Justice and Public Order Act 1994, which removed the word ‘unlawful’ from the definition of rape at s.142. That same provision is better known for expanding the scope of rape to non-consensual ‘sexual intercourse with a person (whether vaginal or anal)’, thereby recognising male ⁸ victims for the first time.

The rape offence continued to broaden, and in 2003, non-consensual penile-oral penetration was included, extending the crime to ‘unidirectional genital contact’ for the first time. I borrow this term from Byers, Henderson and Hobson ⁹ who distinguish between bidirectional genital contact, between the genitals or anus of one party and the genitals or anus of the other (as in vaginal or anal sex), and unidirectional genital contact, between the genitals or anus of one party and a different body part of the other (as in oral sex or mutual masturbation). Their conclusion is that we tend think of sex as bidirectional genital contact only. The present rape offence at s.1 Sexual Offences Act 2003, treats non-consensual penile penetration of the mouth, vagina, or anus equally as rape. This appears to be inconsistent with public perceptions; as the next section will demonstrate, the available evidence indicates that most people do not think of forced oral penetration as rape.

Public Perceptions

Sanyal writes that ‘the way we think about rape is intricately and disturbingly related to the way we think about sex’. ¹⁰ If rape is non-consensual sex, then whether we think of involuntary penile-oral contact as rape depends on whether we think of voluntary penile-oral contact as sex. Hans, Gillen and Akande report that ‘sociocultural conceptualizations of oral-genital contact have shifted’, with the result that it ‘is increasingly excluded from young people's notions of what behaviours constitute sex’. ¹¹ In Sanders and Reinisch's 1991 survey of 599 undergraduates, ‘only 40% indicated that they would say they had “had sex” if oral-genital contact was the most intimate behaviour in which they engaged (60% would not)’ ¹² When this study was replicated in 2007, only 20% of the 477 students sampled ‘would classify this activity as having “had sex”’, instead thinking of oral-genital contact ‘as “messing around”’. ¹³ Researchers in the latter study called this decline ‘the Clinton-Lewinsky effect’:

President Bill Clinton played on the ambiguity concerning what behaviors constitute sex by emphatically stating at a White House press conference in January 1998 that he “did not have sexual relations” with a White House intern. Some considered this statement misleading when it later became known that oral-genital contact had occurred, yet many Americans shared the interpretation that President Clinton relied on. ¹⁴

This affair was also invoked in the House of Lords debate on the Sexual Offences Bill, by Lord Lucas, who opposed the extension of rape to non-consensual oral penetration for the same reason – the act is qualitatively different to full sexual intercourse, whether consensual or non-consensual: ‘The difference between oral sex and full sex is understood […] at the very highest levels – indeed, in the office of the President of the United States’. ¹⁵

Of course, conceptions of sex and rape vary between social demographics, and while heterosexual research participants may think of unidirectional genital contact as foreplay, queer sex can be understood differently. The heteronormativity (and, especially, phallocentrism) of the law is readily apparent. The law requires penile penetration for rape, adultery or the consummation of marriage, but no penile penetration is required in sex between women, and while penile-anal penetration is possible in sex between men, studies indicate that gay and bisexual men describe oral sex as sex at a far higher rate than their straight counterparts. ¹⁶ Differing perspectives as to whether an act is sex or just “messing around” can even arise in the same bedroom; the parties to sexual contact, whether consensual or not, may interpret the acts differently. This absence of shared meaning is reflected in the title of Gute, Eshbaugh and Wiersma's article, ‘Sex for you but not for me’, which reports more evidence that young people typically do not regard oral sex as sex. ¹⁷

But, to the extent that there is a consensus as to what rape is, it does not necessarily – and, I argue, does not currently – align with the statutory definition. If the common view is that oral sex is a separate act distinct from full sex (and the evidence indicates that this is the case), it follows that oral rape is not publicly considered rape but a different sex offence. This suggests that the legislative treatment of non-consensual oral sex as rape makes it harder to obtain a conviction in these cases, and is itself a factor in the notorious attrition rate. The public, after all, are not an abstract category of other people, but the potential victims, perpetrators, and jurors of these crimes.

Victims

The aim of expanding the rape offence was to recognise the trauma and humiliation of forced oral penetration and improve outcomes for people who are harmed in this way. ¹⁸ My concern is that drawing the legal definition too broadly has had the opposite effect, reducing justice for victims, who report that they are often uncertain as to what, if any, offence has been committed. ¹⁹ In their research on public perceptions of rape, Adams-Clark and Chrisler found that assaults involving forced oral sex were associated with higher degrees of minimisation and victim blame than were assaults involving vaginal or anal sex. ²⁰ Likewise, Kahn, Jackson, Kully et al.'s study of victims’ attitudes revealed that people are less likely to characterise what happened to them as rape if the penetration was oral than if it was vaginal; indeed, none of their respondents who had suffered forced oral penetration described the incident as rape, preferring terms like ‘sexual assault’. ²¹ Peterson and Muehlenhard had similar findings:

Many rape victims do not label their experience ‘rape’ […] whose experience met the legal definition […] Women were also unlikely to acknowledge rape when they did not label the nonconsensual sexual behavior ‘sex’. ²²

Readers might respond that individual ideas as to whether an assault amounts to rape have no bearing on its status under criminal law, and where a crime is reported, the Crown Prosecution Service will charge it appropriately, regardless of the victim's interpretation. This may be so for those who come forward, but it is estimated that fewer than one in six (16%) victims of rape or assault by penetration report the attack to the police. ²³ Warburton highlights that ‘a stumbling block to the apprehension and conviction of sexual offenders is the impression, frequently held by victims, that a complaint simply will not go the distance’. ²⁴ The low conviction rate reinforces itself by presenting a disincentive to reporting, as there is little chance that the perpetrator will be brought to justice (construed here as formal criminal justice). The social consequences of a rape conviction are severe, meaning that much is at stake for both the victim and defendant in a rape trial. Bourke adds that, even when victims do come forward, ‘if the police do not believe that there is a high chance of a successful prosecution, they attempt to persuade the complainant to drop the case. Often, they have been able to do this by emphasising (and even exaggerating) the ordeal of the trial’. ²⁵ In cases of oral penetration, it is reasonable to imagine that this process would be less off-putting and a conviction more likely if the offence carried a different name, and the risk of the lifelong stigma of a rape conviction on the defendant's record were removed.

Jurors

Faced with a defendant who has penetrated the mouth of another without consent, how ready would a juror be to convict him of rape if – as the above research suggests is likely – they do not consider his act to amount to the most serious of sex offences? This concern was repeatedly articulated in Parliament during readings of the Sexual Offences Bill. When the expanded s.1 offence was proposed, the view of the Criminal Bar Association was that, although forced oral sex is extremely serious, it should not come within the definition of rape, and that, if it were included in that definition, jurors might be less inclined to convict. ²⁶ Dominic Grieve, who would later become Attorney General, advised:

Juries faced with a case of forced oral sex […] may be reluctant to convict for what is a very serious offence, because it would not be viewed as the offence charged: rape. […] I am not persuaded […] that people associate the word ‘rape’ with forced oral sex. If I am right, there is potentially a problem. ²⁷

The opposing argument was that jurors should concern themselves with legal definitions only. In summing up, judges explain the law to juries and direct them on when the offence is made out, so that ‘if the judge gives a direction as to what is meant, just as there was no difficulty in relation to anal intercourse, there would be no difficulty in that regard in relation to oral penetration’. ²⁸ This was the view taken by the Sexual Offences Review Committee:

We see the logic of grouping all forms of non-consensual penile penetration—including penetration of the mouth—within the same offence. The law on rape has adapted successfully to changes of definition in the past and we find no reason to suspect that juries will be reluctant to convict on the new definition. ²⁹

On behalf of the Rape Crisis Federation and Campaign to End Rape, Cathy Halloran told the Sexual Offences Review Committee: ‘We have a different perception now of rape, in that rape can now be rape of a male and rape of a female, it can be vaginal, and it can be anal. In my view, it can become penile penetration of the mouth, and it will be accepted, just as anal penetration has been accepted as rape’. ³⁰ Her wording (‘it can become […] it will be accepted’) indicates a recognition that the general understanding of rape did not then extend to oral penetration, but could change to include it. There is no evidence that this shift has occurred; on the contrary, both the conviction rate and the percentage of people who consider forced oral sex to be rape have since fallen significantly. The unprecedentedly broad scope of the offence has left a persisting discrepancy between the criminal law and the views of the public it serves. It would not matter whether jurors regard forced oral sex as rape if the law used a different word for assaults of that kind.

Perpetrators

Because of the difference between the lay understanding of rape and the legal scope of the offence, perpetrators of these assaults may not consider that they have committed rape. Viscount Bledisloe anticipated this when the expanded offence was debated in the House of Lords:

The government can either use ‘rape’ in the way in which it is understood by the populace and have a separate crime for forcible oral penetration, or they can pervert the word ‘rape’, as the Bill does at the moment, and have people going around saying, “It is ridiculous. I have been convicted of rape, but I didn't rape her at all, I penetrated her mouth”. ³¹

This discrepancy could have two serious consequences where perpetrators are concerned.

First, defendants who do not consider themselves rapists are less likely to enter a guilty plea where the charge is rape, preferring to take their chances with a jury. Guilty pleas have a range of advantages, including sparing the victim the ordeal of the trial – often experienced as a second rape ³² or worse than the rape itself ³³ – reducing costs and burden to the criminal justice system, and guaranteeing conviction. In cases of non-consensual oral penetration, it is likely that defendants would be more willing to plead guilty if they could do so without calling themselves rapists. Adams-Clark and Chrisler conclude persuasively:

If an assault involves forcible oral sex, […] it is less likely that the assault would be described as rape by victims, perpetrators, or potential jurors than it would be if an assault involves vaginal or anal intercourse. ³⁴

Second, following conviction, an offender's prospects for settling in to prison, being granted parole, and successful reintegrating upon release depend in part on their accountability and readiness to accept responsibility for their crime. Because most prisoners will eventually return to the community and live alongside us as our neighbours, colleagues, partners and friends, their reintegration is important for everyone. ³⁵ Those who commit non-consensual oral penetration, are convicted of rape, and yet resist the ‘rapist’ label are likely to have a more difficult adaptation to prison, reduced chance of parole, and poorer rehabilitation outcomes.

The above findings have serious implications and are likely to contribute to rape case attrition at several points along the ‘leaky pipeline’ from commission to conviction. ³⁶

Attrition

It is difficult to research rape law without running into carceral feminist arguments. Bernstein coined the term ‘carceral feminism’ to describe ‘the commitment of […] feminist activists to a law and order agenda and […] a drift from the welfare state to the carceral state as the enforcement apparatus for feminist goals’. ³⁷ Gurnham adds that carceral feminism ‘represents a view that more criminal convictions of men signifies an advancement for gender justice […] ignoring the harmful effects of using the violence of state coercion as a means of promoting women's interests […] and, on the subject of sexual offending, therefore regards increasing the numbers of convictions for rape and sexual assault a primary aim’. ³⁸ Although I identify here a possible factor in rape case attrition and a statutory change that might mitigate it, I am not suggesting that a significant increase in convictions is a likely or even desirable outcome of rape law reform.

The conviction rate is a blunt instrument. There were fewer rape convictions in the year to March 2020 than in any previous year for which data exists. ³⁹ Recently, recorded offences reached all-time highs, with police recording 68,949 rapes and 195,315 sex offences in the year to March 2023. ⁴⁰ This does not necessarily mean that incidents of rape are increasing; it may simply be that more victims are coming forward. Reece reminds us that ‘the burgeoning rate of rape reporting, even as it worsens the attrition rate, is itself the achievement of one aim of rape law reform’. ⁴¹ Another problem with centring the conviction rate is the inconsistent way in which it is measured. The conviction rate is usually given as the percentage of offences reported to the police that result in conviction, but some sources give it as the proportion of trials in which juries reach a guilty verdict. When legal commentator Joshua Rozenberg wrote to his Substack subscribers with the headline ‘Rape convictions increase to 75 per cent: Groundbreaking new research contradicts widely held assumptions’, ⁴² he was publicising research findings that three quarters of rape trials result in a conviction. ⁴³ It is true that juries in rape trials are more likely to convict than to acquit, but to take as the denominator the number of cases presented to a jury is misleading. For example, 68,949 rapes were reported in the year to March 2023, of which only 2655 were prosecuted and only 1685 led to convictions. ⁴⁴ Even if none of these were the result of a guilty plea, 1685 out of 2655 would be a 63% jury conviction rate, but this disregards the overwhelming majority of cases that never reach a jury. The government's own rape review reported:

There are an estimated 128,000 victims of rape a year. Less than 20% of victims of rape report to the police. Even worse, only 1.6% of rapes that are reported result in someone being charged. That means that considerably fewer than one in every 100 rapes actually leads to justice for its victim. ⁴⁵

Understandably, an attrition rate of more than 99% in real terms has led to the criticism that rape has ‘been effectively decriminalised’. ⁴⁶ A different approach is needed.

Fair Labelling

Rape occupies a legal and cultural position as a uniquely appalling and blameworthy offence. This is reflected in legislation, sentencing, and the contempt that the word ‘rapist’ attracts. For these reasons, it seems appropriate to reserve ‘rape’, ‘a word laden with emotive and evaluative significance’, ⁴⁷ for the most extreme sexual harms. Instead, decades of expansion of the rape offence have attached ‘the harshest sort of condemnation’ ⁴⁸ to an ever-growing range of behaviours.

Fair labelling is the criminal law principle that distinctions between offences should reflect differences in the nature and seriousness of the transgressions that they criminalise. The aim ‘is to see that widely felt distinctions between kinds of offences and degrees of wrongdoing are respected and signalled by the law, and that offences are subdivided and labelled so as to represent fairly the nature and magnitude of the law-breaking’. ⁴⁹ We must therefore ask whether forced oral sex is equivalent or ‘something quite different in nature and quality to rape’. ⁵⁰ It is not the place of this paper to question whether some rapes are more harmful than others, especially as the presence or absence of aggravating factors means that there is as much variation within as between different types of rape. However, it would be in bad faith not to recognise that there are important qualitative differences between vaginal and oral intercourse that support separate labelling, including but not limited to: the exposure and penetration of one's private parts, the social significance of the act, and the increased risk of pregnancy and infection. ⁵¹ With the exception of the risk of pregnancy, these factors also apply to anal penetration, supporting its inclusion in the rape offence. None of these features necessarily apply to oral penetration.

Ashworth notes the importance of legal definitions reflecting ‘common patterns of thought in society […] where people generally regard two types of conduct as different, the law should try to reflect that difference’. ⁵² The use of ‘rape’ for non-consensual oral penetration, inconsistent as it is with public perceptions of sex and rape, may apply a more severe label than the defendant knowingly risked, and vaginal and anal rape victims may consider that they have suffered if not a greater harm then at least a meaningfully different harm to oral rape victims. It seems right that this should be reflected in how we describe and charge these assaults.

This consideration is especially salient for the potent word ‘rapist’. Bourke describes how, over time, ‘what was initially seen as an act involving sexual violation became eventually conceived as part of an identity (“the rapist”)’ ⁵³ so that, as Sanyal puts it, ‘a rapist wasn't someone who had committed a crime but someone who became his crime’. ⁵⁴ Longer term, a rape conviction on one's record and the status of being, legally, ‘a rapist’ are likely to be much more damaging in terms of a defendant's rehabilitation prospects, social reintegration, and employment opportunities than any other sexual assault conviction except those involving children. Limiting the situations in which this word applies, in line with the popular conception of rape as forced vaginal or anal sex, is therefore likely to promote the healthy reintegration of those who commit other serious sex offences. This would benefit not just the individual but also wider society.

We should be mindful that the word carries a particular taboo for victims too. Research shows that people regard being labelled a ‘rape victim’ as a highly stigmatised status; Peterson and Muehlenhard remind us that people may be reluctant to view themselves as ‘rape victims’ either because this label connotes powerlessness, or because they do not want to position the perpetrator – often an intimate partner – as a rapist. ⁵⁵ This suggests that victims would be more likely to come forward in cases of forced oral sex if the offence had a different legal status and did not make them a rape victim.

It is worth noting that the Sexual Offences Act 2003's extension of rape to oral penetration is also at odds with the rest of the law; only penile-vaginal intercourse amounts to consummation ⁵⁶ or adultery. ⁵⁷ Certainly, this is unduly narrow and heteronormative, but if oral sex is not equivalent to vaginal sex in family law, it is incongruous that they should be grouped together in criminal law.

The unique stigma of the words ‘rape’ and ‘rapist’ persists because they are reserved only for the worst kind of sex crime. A fair labelling argument has been invoked elsewhere to support distinctions both within the rape offence, ⁵⁸ and between rape and other sex offences. ⁵⁹ If we feel that forced oral sex stops short of the most complete sexual violation, we should query whether the most serious offence in the Act is the proper place for it.

Arbitrary Distinctions

The broadened scope of rape was intended to reflect ‘changes in society and social attitudes’. ⁶⁰ It seems, however, that the present formulation still fails to represent the common view, and creates unsubstantiated divisions between offences. For instance, a person who is forced to perform oral sex on another is raped if the other has a penis but not if they have a vagina; a person who is forced to have vaginal or anal sex with another is raped if they are the penetratee but not if they are the penetrator.

As one of the most serious crimes known to the law, the boundaries of the rape offence ought surely to be clearly determined and rational. So, what is the element of an assault that makes it rape, rather than another sexual offence? It is not genital penetration, because this indignity also occurs in s.2 assault by penetration. It is not common understandings of forced sex, because even penile-vaginal intercourse – the paradigmatic sex act – is only rape if the party who does not consent is the one who is penetrated. It is not the risk of conception, because male-on-male forced sex is rape while female-on-male forced sex is not. Note that all these offences – s.1 rape, s.2 assault by penetration and s.4 causing a person to engage in sexual activity without consent (the appropriate charge in ‘forced to penetrate’ cases) – carry the same maximum sentence of life imprisonment, so the distinctions between offences are not based on culpability. This leaves the law in an inadequate and inconsistent state, ‘making the basis for excluding some penetrative acts and not others difficult to discern’, as Rumney observes. ⁶¹

Conceding that the inclusion of oral penetration was a radical departure from the ordinary understanding of rape, ⁶² the Home Office maintained that ‘forced oral sex is as horrible, as demeaning and as traumatising as other forms of forced penile penetration, and we saw no reason why rape should not be defined as penile penetration of the anus, vagina or mouth without consent’. ⁶³ The literature indicates, and this article does not dispute, that ‘the traumas associated with the various forms of rape across location of penetration and type of penetration are similar’. ⁶⁴ While few would disagree that, as Warburton puts it, ‘a person forced to perform fellatio on an assailant may suffer degradation equal, or even greater than, an assault involving other forms of forced penile penetration’, ⁶⁵ to make the degree of degradation the determining factor is unsatisfactory, as the same could be said of many other violations that remain outside s.1. In short, the line between assaults that are and are not legally rape is not consistent with public perceptions of sex, likelihood of pregnancy, or the penetration of the victim's private parts. The only factor that applies to all and only the conduct under s.1 is penile penetration and, even then, it must be the victim who is penetrated. ⁶⁶ I argue that this is an arbitrary and unjustifiable distinction.

Alternative Approaches

Forced penile penetration of the mouth is an appalling sexual offence that deserves serious condemnation by the law. In this section, I evaluate the suitability of the Act in its present form to respond to offences of this nature, and explore the merits of a range of possible statutory approaches to them, namely their current handling under s.1, potential inclusion under ss.2–4, and a new specific offence of non-consensual oral penetration.

Section 1: Rape

The Act explicitly includes oral penetration under the rape offence. I have demonstrated above that penile penetration of the vagina or anus is bidirectional genital contact and, when consensual, widely regarded as full sex, whereas penile penetration of the mouth is unidirectional genital contact and, when consensual, widely regarded as a different, less complete sexual act. Home Office statistics reveal that only 6.9% of crimes recorded by police in the year to December 2024 resulted in a charge or court summons; for sex offences, the charge rate was 4.1% overall and 2.7% for rape. ⁶⁷ This is not only evidence of the inadequacy of the criminal justice system, as currently constituted, to respond to harm, but also indicates that sex offences are more likely to result in a charge where the charge is not rape. Both of these considerations support an alternative statutory provision for forced oral sex.

Section 2: Assault by Penetration

If we oppose the extension of s.1 to unidirectional genital contact, the most obvious alternative would have been to bring forced oral penetration under the scope of the s.2 offence. This was the approach preferred by the Criminal Bar Association, whose Chairman Peter Rook KC, told the Sexual Offences Review Committee that, because ‘juries might be less inclined to convict of rape’ in a case of forced oral sex, assault by penetration ‘would be a more natural home for it’, ⁶⁸ especially as the maximum penalty is the same. While I agree that this would have been preferable, s.2 is, in a sense, the opposite offence to oral rape. It refers to assaults in which the genitals of one are penetrated by something other than the genitals of the other. What is required is the inverse equivalent, in which the genitals of one penetrate something other than the genitals of the other.

Section 3: Sexual Assault

Before 2003, forced oral sex was (clearly inappropriately) characterised as indecent assault. The modern equivalent of that crime is sexual assault. Although ‘sexual assault’ is sometimes used as an umbrella term or euphemism for a range of non-consensual conduct including rape, the statutory offence applies to more minor violations such as forcible kissing or groping. Whereas the offences at s.1, s.2 and (in some circumstances – see below) s.4 can lead to life imprisonment, s.3 sexual assault carries a maximum sentence of 10 years. Treating penile-oral penetration as sexual assault would fail to reflect the seriousness of the harm in question.

Section 4: Causing a Person to Engage in Sexual Activity Without Consent

This offence is the most appropriate of the options presented so far, as it includes ‘forced to penetrate’ cases, and causing the victim's mouth to be penetrated by the penis of another. It is difficult to see how this is less offensive than causing the victim's mouth to be penetrated by one's own penis; certainly, the harm to the victim is the same. Although I call for a separate offence, an improved approach that avoids the creation of a new offence would be to prosecute all forced oral penetration under s.4 and so avoid the disincentives, outlined above, that the ‘rape’ label may present to victims, perpetrators, and jurors. However, this section seems best suited to offences in which the defendant causes the victim to engage in sexual activity alone or with a third party. A separate offence is needed.

A new Offence

The increasingly broad scope of one of the gravest sex offences is problematic in terms of fair labelling and the rehabilitative prospects of offenders and victims alike. The current statute makes arbitrary distinctions between offences and is inconsistent with lay understandings of sex and rape. The interests of both parties, the aims of criminal justice, and the pursuit of fair labelling all call for a taxonomy of offences that are clearly named and defined and, as far as possible, map onto common understandings of different assaults.

Even if an existing offence appropriately reflects the nature of the harm, as it may be argued that s.1 rape does here, there remain practical reasons for prosecuting some behaviour separately. Clarkson gives the following example: although causing death by dangerous driving is as serious as causing death by stabbing, which would be murder or manslaughter, this does not mean that the former should be subsumed under the latter. If juries were unlikely to convict a defendant who caused death in this way of murder or manslaughter, there would be a strong case for a separate, though no less serious, offence. ⁶⁹ He uses this to argue for a specific offence of corporate killing, on the basis that it has been so difficult to convict companies of manslaughter. The same logic applies to the present context. The evidence demonstrates that the word ‘rape’ is an obstacle. I therefore propose a new offence of non-consensual oral penetration, which would carry the same maximum penalty as rape but avoid that word. This might be achieved by amending ‘vagina, anus or mouth’ at s.1(1)(a) Sexual Offences Act 2003 to ‘vagina or anus’, and creating a Section 2A ⁷⁰ offence of ‘assault by oral penetration’ along the following lines:

A person (A) commits an offence if—

he intentionally penetrates the mouth of another person (B) with his penis,

the penetration is sexual,

B does not consent to the penetration, and

A does not reasonably believe that B consents.

Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

Sections 75 and 76 apply to an offence under this section.

A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life.

This proposed new section, almost identical in its wording to s.2, would not extend the scope of the statute, but merely treat an existing crime under a separate heading.

Limitations

It would be remiss not to address some of the limitations of my proposal. I set out and respond to three possible counterarguments below.

Creating a New Offence Would Downgrade the Seriousness of Oral Rape

The Act impliedly creates a hierarchy of offences, at the top of which is rape. One counterargument is that to remove non-consensual oral penetration from the scope of the offence would be a backward step that undermines its seriousness. As Baroness Gould submitted to the Lords Debate on the Sexual Offences Bill, ‘in effect it will become a lesser offence. I do not believe that that is right’. ⁷¹ Treating non-consensual oral penetration as rape serves the criminal justice aims of deterrence and denunciation, sending a clear message about the gravity of the offence and society's contempt for the offender. While I empathise with concerns that creating a new crime might frame forced oral penetration as a lesser violation, I have demonstrated above that the use of the word ‘rape’ may in fact be hindering the aims of criminal law. The name of the offence is presumably less important to victims than whether the offender is convicted at all. In Canada, the legislative change that replaced the rape offence with several degrees of sexual assault was followed by an increase in reporting, suggesting that the rape label had discouraged victims from coming forward. ⁷² Treating oral penetration under a different name, but no less seriously, is likely to lead to higher rates of reporting and conviction, as there could be little doubt as to what the offence entailed.

Public Opinion Should Not Be Determinative, and Can Change

How persuasive is the argument that the law should represent social attitudes? Another criticism is that public opinion on the appropriate name for an offence is likely to differ and, even where a majority view can be discerned, this does not necessarily mean that it is appropriate to reflect it. ⁷³ This has a couple of implications for my argument. The first is that the law should not (just) follow public opinion but (can also) lead it. Rumney writes:

Studies consistently indicate that many people have a poor understanding of the nature, prevalence, and impact of rape. As such, the public understanding of rape is an unreliable criterion upon which to base law reform proposals. […] Such an approach also ignores the potential for changes in public opinion and the educative role of law reform. ⁷⁴

Criminal legislation can set a valuable example in denouncing offensive behaviour, recognising the seriousness of certain harms (recent examples include ‘upskirting’ and catcalling), and opposing rape myths. Parliament has so far been untroubled by gaps between legal and social understanding in this area – for example, no one would deny that a man who is a coerced by a woman into vaginal intercourse is the victim of non-consensual sex, but the criminal law has never treated this as rape.

Second, public opinion can change, and ideas of what constitutes sex or rape may vary dramatically one from generation to the next. While there is no evidence that the expanded s.1 offence has led public opinion in this way, we have seen a rapid development both in social awareness of consent and sexual ethics, and in visible diversity in sexual orientation and gender identity, with the result that our understandings of sex and sexuality are likely to be more inclusive, varied and nuanced than ever before. One of the arguments underpinning this paper may therefore be of declining relevance, as ideas of sex and rape change over time.

An Increased Conviction Rate Would Be Unlikely and Unhelpful

When the Act was being debated, Lord Thomas told the House of Lords, ‘by now the conviction rate is 7% […] It is clear that the framework of the law needs to be adjusted and improved’. ⁷⁵ It is poignant to read these words decades later and note how high 7% seems today. Reece describes how ‘rape law has been overhauled, with a principal aim of increasing the number of convictions, and this has not happened’. ⁷⁶ On the contrary, the number of convictions has consistently declined, following extended periods of law reform that might have been expected to increase it. She summarises:

There has been a substantial rise in rape reporting. However, the number of rape convictions has not kept pace, leading to a galloping attrition rate. To the extent that rape law reform aimed at convicting more men of rape, it has not been an unqualified success. ⁷⁷

Even if a legislative change did result in more convictions, Larcombe argues that ‘increasing conviction rates is not in itself a valid objective of law reform’, not least because of the danger that, ‘rather than conviction rates being seen as symptomatic […] the rates themselves become the problem that must be redressed’. ⁷⁸ Those of us who work in universities are all too familiar with institutional fixations on metrics, where ‘better’ numbers are pursued as the end and not the means! We have seen higher conviction rates in the past and know from experience that enhanced criminalisation cannot lessen victims’ pain, reform rapists, or protect society. Kaba writes:

Increasing rates of incarceration have a minimal impact on crime rates. […] Putting a few perpetrators in prison does little to stop the many other perpetrators. It does nothing to change a culture that makes this harm imaginable, to hold the individual perpetrator accountable, to support their transformation, or to meet the needs of the survivors. ⁷⁹

I agree that focusing on convictions is a carceral feminist attempt to fight gender violence with state violence, and achieves more harm than good. Larcombe has shown how ‘strategies designed solely to increase conviction rates are more likely to work against, rather than in support of, feminist aims’. ⁸⁰ To the extent that gender justice can be advanced through the criminal law, it requires us to decentre the conviction rate in our ideas for reform.

Conclusion

In summary, I propose that the inclusion of forced penile-oral penetration under the rape offence be reversed, and that the Sexual Offences Act 2003 be amended to add a specific, equally serious offence of non-consensual oral penetration. It is likely that this would make the law clearer, more logical, and more consistent with public understandings, and would improve outcomes for both parties to the crime by avoiding the stigma of the word ‘rape’. Although the less stigmatising language may facilitate reports from victims, guilty pleas from defendants, and guilty verdicts from juries, my recommendation is not offered as a means of addressing rape case attrition. On the contrary, increased convictions are neither a likely outcome of rape law reform, nor an effective response to gender violence. My argument instead appeals to the aims of fair labelling, clear and coherent legislation, and the public interest.