HomepageCommercial LawPrivate LawPublic Law & Human RightsCriminal LawEU & International LawCareers

Accessibility

Have Irlen Syndrome, or need different contrast? Click the button below for options.

Background Colours

Subscribe

Enter you email address below to subscribe to free customisable article notifications.

Alternatively, click the button below for our various RSS Feeds (available journal wide, or per section).

Gendered Legislation: Critiquing the Sexual Offences Act 2003

Article Cover Image

About The Author

Bronte Cook (Guest Contributor)

Bronte is a law student just entering her second year at the University of Cambridge, with a particular interest in jurisprudence and human rights. Outside of the law she enjoys swimming and reading.

Image © thinkpublic

This article is part of the 'Sexual Offences In 2015' series, edited by Keir Baker.

Social, cultural and scientific changes create novel pressures for lawmakers, whether they be judges or legislators. This series on sexual offences intends to examine whether the law is keeping up with change, or failing to accurately reflect the public attitude towards sex.

Other articles from this series are listed at the end of this article.

Sexual abuse is finally being spoken about openly. Although there is much more progress required, perpetrators of abuse are being held to account more frequently. The prime example is the shocking revelations of Jimmy Savile’s abusive history between 1955 and 2009, which came to light through Operation Yewtree, after an investigation into five women’s accounts of abuse at the hands of Savile in the 1970’s on the Mark Williams-Thomas’ ITV Exposure programme. The finding of this investigation shocked the nation, and has lead to many more victims coming forward, with over 100 people accusing Savile of abuse. Many other celebrities and public figures have also faced accusations and charges over past sexual offences, and well as the Rotherham child abuse scandal being discovered.

These cases have highlighted the importance of having sexual legislation in place that adequately protects both current and potential victims, but also punishes perpetrators sufficiently proportionate to the severity of their behaviour.

Most crimes of a sexual nature are covered by the ambit of the Sexual Offences Act 2003 (SOA 2003), which replaced the heavily flawed Sexual Offences Act 1956 (SOA 1956) in an attempt to bring legislation up-to-date with the changing attitudes towards what is considered to be unacceptable sexual activity. This article aims to critically evaluate the remaining gender specific aspects of the SOA 2003 in order to determine whether it is adequately protecting all those vulnerable to, or experiencing, sexual abuse.

The Old Legislation

The SOA 1956, repealed by the SOA 2003, clearly displays the antiquated attitude to sex that was present at the time of drafting. Some issues with the legislation are immediately obvious; most glaringly section 13, which included criminalisation of a person’s sexuality, declaring ‘indecency between men’ illegal.

In addition, many of the provisions are completely gendered. For example, whilst section 2 and section 3 criminalise the ‘procurement of woman by threats’ and by ‘false pretences’ respectively, there is no equivalent offence for the procurement of a man through either route. It is clear that men are portrayed as sexual aggressors and women as sexual victims in these provisions.

This gendered drafting appears repeatedly, with section 5 listing the offence of ‘intercourse with a girl under thirteen’, and all four offences under ‘Abduction’ (sections 17-21) referring only to women. In fact, the same actions – committed by in one case a man and another, a woman – are often covered under the ambit of two different offences: ‘Indecent assault on a woman’ (section 14) and ‘indecent assault on a man’ (section 15) are under separate provisions, suggesting that the nature of the offence is different and that the behaviour requires two different responses. The same can be said for incest by a man or by a woman under sections 10 and 11.

The Current Legislation

There have been many improvements that focus on clarifying what is considered a sexual offence, thereby clearly marking out the ambit of the legislation. For example, ‘sexual’ is defined in section 78 of the SOA 2003 Act, in two strands:

S.78(1)

“For the purposes of this Part (except section 71), penetration, touching or any other activity is sexual if a reasonable person would consider that—

(a) whatever its circumstances or any person’s purpose in relation to it, it is because of its nature sexual, or

(b) because of its nature it may be sexual and because of its circumstances or the purpose of any person in relation to it (or both) it is sexual.”

This section of the legislation is interpreted very loosely - in R v H [2005] EWCA Crim 732 it was determined that this section of the Act can render most behaviour sexual (including the touching of another’s clothes), provided the defendant possessed the right intention.. This can be seen to be a positive element of the Act: it maximises the scope of behaviour that can be considered sexual and allows the Act to be applied to a wider range of cases in which inappropriate behaviour is being directed at a non-consenting party. Given the aim of the Act is to protect people from inappropriate, unwanted sexual behaviour, and by widening the scope, it is laudable that the provision is managing to achieve this goal in more scenarios,  highlighting that many people can be made to feel uncomfortable or harassed by behaviour that would not at first sight seem inherently sexual.  

Gendered Offending

The SOA 2003 moves largely away from the gendered provisions of the SOA 1956 with the majority of offences being committable against, and by, either gender. This not only ensures that women who commit offences are held to account, but also legitimises the inappropriate sexual experiences of male victims; rightly resulting in their abuse being considered as condemnable and wrong as the same behaviour directed towards a woman or girl.

In addition to this, the SOA 2003 specifically makes reference in section 7(3) to the fact that ‘references [in the legislation] to a part of the body include references to a part surgically constructed (in particular, through gender reassignment surgery)’. Absent from previous sexual offence legislation, the inclusion of this provision makes clear that transgender persons are to be treated equally in regards to sexual abuse, both as victims and as perpetrators. The importance of ensuring transgender persons are treated as equals in sexual offence legislation was discussed in more depth elsewhere in this article series, ‘Is the law regarding sexual consent transphobic and homophobic?’.

However, there still remains one offence that can only be committed by a man (although can be committed against either gender): rape.

Section 1 of the SOA 2003 outlines the requirements for this offences as follows:

(1) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

Rape is therefore restricted to only include offences involving penile penetration. Therefore, if a man is forced or coerced into having sex by a woman, this will not be considered to be rape. Instead either the offence of ‘sexual assault by penetration’ under section 2 of the SOA 2003 - or that of  ‘causing a person to engage in sexual activity without consent’ under section 4 will apply.

Further, there are discrepancies in the sentencing arrangements. Whilst ‘rape’ carries a life sentence upon indictment, ‘causing a person to engage in sexual activity without consent’ has a maximum sentence of 10 years, provided the victim is not being penetrated. If the victim is penetrated this rises to life imprisonment. Where a woman forces a man to have sex, it is clear that it is the victim doing the penetrating; therefore the sentence for the perpetrator will be capped at 10 years imprisonment. This places the gravity of the offence under section 4 (without penetration) below that of rape.

It is not only discrepancies in sentencing that are an issue with regards to the gendered nature of rape as an offence, but also the censure and social reaction to ‘rape’ as a concept in contrast to ‘causing a person to engage in sexual activity without consent’.

The word ‘rapist’ rightly has extremely negative connotations and receives much societal contempt; the media displays the experience of the victims of rape as traumatic, and rapists as morally bankrupt and evil.  Some have argued that making rape gender neutral rather than focused purely on male perpetrators will recognise and legitimise the ordeal that male victims of serious sexual assault experience. The aim is to assign it the same tier of societal disgust as ‘rape’. As, Phillip N. S. Rumney, Reader of Law at University of West London argued in the Seattle Journal for Social Justice, ‘it is high time that the reality of sexual victimisation for all those who suffer its pain and degradation be our concern when defining criminal acts’.

Conclusion

Whilst the SOA 2003 is undoubtedly a significant improvement on the earlier 1956 act, it is not above criticism.

As legislation that deals with incredibly traumatic offences, careful drafting is needed for a new Sexual Offences Act that protects all possible victims, and to ensure that all inappropriate behaviour that is considered severe enough to warrant a criminal sanction is included and dealt with accordingly. The legislation should therefore not be left to stagnate, but debate should continue in relation to its appropriateness and sufficiency in dealing with all inappropriate sexual behaviour. In particular, the presence of the gendered provisions, though minimal, is deserving of increased scrutiny to assess whether it is adequately protective of all potential victims.

For the latest articles straight to your inbox, you can subscribe for free. Alternatively, follow @KeepCalmTalkLaw on Twitter or Like us on Facebook.

Tagged: Criminal Law, Discrimination, Equality, Sexual Offences

Comment / Show Comments (0)

Other Articles From The Sexual Offences In 2015 Series

Section Pick January

Assaults on Emergency Workers: Protecting the Protectors or an Empty Promise?

Editors' Pick Image

View More

KCTL News

Changing of the Guard: Moving Keep Calm Talk Law Forward

12th Aug 2018

An Anniversary or Two: Four Years of Keep Calm Talk Law

11th Nov 2017

Rising from the Ashes: The Return of Keep Calm Talk Law

18th Nov 2016

Two Years On, Keep Calm Talk Law’s Legacy is Expanding

11th Nov 2015

Keep Calm Talk Law's First Birthday

11th Nov 2014

Twitter

Javascript must be enabled for the Twitter plugin to function. Click below to visit us on Twitter.

Free Email Subscription

Subscribe to Keep Calm Talk Law for email updates, and/or weekly roundups. You can tailor your subscription on activation. Both fields are required.

Your occupation / Career stage is used to tailor your subscription and for readership monitoring.

Uncheck this box if you do not want to receive our monthly newsletter.

By clicking the Subscribe button, you agree to our privacy policy and terms of service. Please ensure you read these in full.

Free Subscription