Definitions

**Trigger warning: Rape, sexual assault**

 

Here we will provide legal and beyond-legal definitions of sexual assault and rape. We are providing two types of definition as many survivors believe the legal definition is limited and partly explains the low conviction rate for rape and sexual assault.

 

Regardless of any limitations in the legal definition, we want to reassure you that if you have experienced rape, it is not your fault.

 

Legal definitions:

The Sexual Offences Act 2003 defines rape as: the non-consensual penetration by a penis of the vagina, anus or mouth of another person.

 

According to the law, ‘consent’ means if a person agrees by choice, and has the freedom and capacity to make that choice. An individual does not have to physically resist penetration to prove a lack of consent.

 

The law states that the defendant (A) is guilty of rape if they:

–          Intentionally penetrate the vagina, anus or mouth of B (the complainant) with their penis;

–          B does not consent to the penetration; and,

–          A does not reasonably believe that B consents.

 

According to the law, the person who commits the offence of rape must me male because the penetration has to be with a penis. The law recognises that both men and women may experience rape. If the penetration is with something other than a penis, the law says the offence is assault by penetration.

 

The law regards all non-consensual penetration by a penis of the vagina/anus or mouth as rape, regardless of the relationship within which the rape takes place. For example, rape can happen within marriage.

 

The law says that the offence of rape can only be committed by a man, but a woman can be convicted of rape as a secondary party, for example if she facilitated (helped) a man who has raped another person.

 

The Sexual Offences Act 2003 details three provisions regarding consent:

  1. A statutory definition of consent: consent is “agree[ment] by choice, and had the freedom and capacity to make that choice.”
  2. The test of reasonable belief in consent: This takes into consideration any steps A (the defendant) has taken to determine whether B consents to the sexual act. This takes into consideration issues including age and disability status. It means that the defendant (A) has the responsibility to ensure that B consents to the sexual activity at the time in question.
  3. The evidential and conclusive presumptions about consent and the defendant’s belief in consent.

 

A full copy of the Sexual Offences Act 2003 can be downloaded from here: http://www.legislation.gov.uk/ukpga/2003/42/contents

 

Beyond legal definitions:

The legal definitions of rape and sexual assault are limited in numerous ways.

 

Firstly, the law states that only males can rape, but some people say that penetration of the mouth, anus or vagina by an object other than a penis should be classed as rape, which would mean that the sex of the perpetrator was not a central determiner of rape.

 

The law does state that consent has to be given at the time in question, but this is not specified, for example if someone consents to sex at night time, that does not mean they consent to sex the next morning. Additionally, an individual may consent to some sexual acts, for example foreplay, but not to intercourse. The lack of clarification of each sexual act being consented to leaves a grey area in the law.

 

Here are our alternative definitions, based around the premise that rape and sexual assault are never the fault of the survivor.

 

What is rape?

Rape is where sexual acts (such as penetration) are used without the consent of another person: basically, rape is having sex without the permission of the other person. Rape can happen in any relationship and can happen even if consensual sex has previously occurred. Rape can involve individuals of any gender.

 

What is sexual assault?

Sexual assault is a sexual act forced on someone without their consent. It can involve forcing or manipulating someone into engaging or watching a sexual act. For example, grabbing someone’s breast, forcing someone to watch pornography or going beyond boundaries consensually set in oral sex. Sexual assault can happen in any relationship, even if consensual sex or sexual acts have previously occurred. Sexual assault can involve individuals of any gender.

 

What is consent?

Consent is, simply, giving someone permission to do something to you when you have the freedom and ability to consent to the act. For example, if someone says “you want me to do this, don’t you?” the tag question doesn’t give you freedom to answer in any way that you like. Another example would be if someone asked if they could do something to you and you didn’t know what it meant. If the person doesn’t explain the act, and you do not understand what it is, then it is not possible to freely and ably consent to it.

 

You do not have to physically resist something for it to be non-consensual, you do not have to even say ‘no’, simply not agreeing to something means you have not consented to it. Even if you agree to something at one point, that does not mean you always agree to it and you always have to go ahead with it, if you change your mind. It is your body and it is your choice as to what you consent to others to do.

 

See our section on consent for stories and examples of talking about consent prior/during and after sex.

 

 

 


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