By Teodora Nizirova (student in Law at Bournemouth University), Melanie Stockton-Brown (Senior Lecturer in Law at Bournemouth University), Karolina Szopa (Lecturer in Law at Bournemouth University) and Jamie Fletcher (Lecturer in Law at Bournemouth University)

Introduction: What’s the problem?

This blog post argues that the Sexual Offences Act 2003’s[1] penile penetration requirement is not fit for purpose. Whilst the Sexual Offences Act modernised ‘rape’ through the introduction of an agendered victim, it is now time to introduce the agendered perpetrator. Doing this will allow the ‘law of rape’ to move beyond heteronormativity and better capture the diverse sexualities and gender identities present in contemporary society. Moreover, doing this will offer survivors of non-penile rapes with the appropriate legal recognition of harm caused. It is also contended that this can be achieved without undermining or failing to acknowledge in law the unique harms caused through penile penetration. Furthermore, the reform proposed by this blog lacks complexity and could be achieved in timely fashion through amending Sections 1 and 2 of the Sexual Offences Act.

To make this argument, this blog will be divided into four further sections. In Section 1, the current law and its problems will be explained. Section 2 will address the reasons why the current law has this divide between penile and non-penile penetration. Section 3 will advance reasons why this divide is unacceptable. Finally, Section 4 will explain how we believe the law should reformed. 

Section 1: What is the law?

The last major reform to the United Kingdom’s sexual offences laws occurred with the introduction of the Sexual Offences Act 2003 (“SOA”).[2] Within the Act, the definition of ‘rape’ was reformed to create a more modern offence.[3] Reform was necessary as existing law was outdated and did not reflect the reality of sexualities and gender identities in the twenty first century, and thus, could not be applied to most sexual offences outside of the heteronormative context.[4] Moreover, it was acknowledged that limiting the potential victim of sexual offences by gender raised concerns about compatible with the European Convention on Human Rights.[5]

The government acknowledged that these problems would be best overcome by making the definition of rape gender-neutral, unless ‘there was good reason to do otherwise’.[6]

Section 1 of SOA therefore defines rape 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.

By clarifying and extending the potential parts of the body upon which rape can be committed, to include oral penile penetration, anal penile penetration and vaginal penile penetration, Section 1 cemented onto a statutory footing a genderless definition of ‘victim’ for rape. Furthermore, these reforms increased inclusivity by extending the definition of vagina to include surgically created vaginas.[7] These reforms made the understanding of rape partially gender-neutral, allowing for male victims of rape and sexual offence.

However, because Section 1 maintained the requirement of penile penetration it made it impossible for those without a penis to commit the offence. Additionally, any non-penile penetration, committed by somebody with a penis, is also excluded from this definition of rape. In both instances, these non-penile penetrations would be charged under Section 2 of the SOA.

Section 2 of SOA relates to assault by penetration and is laid down as follows:

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

(a) he intentionally penetrates the vagina or anus of another person (B) with a part of his body or anything else,

(b) the penetration is sexual,

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

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

The offence of assault by penetration can consequently be perpetrated by a person of any or no gender. This broadens the protection of sexual offences to acknowledge all penetrations excluded by Section 1 via its penile requirement. The aim of Section 2 is to create a parallel offence to rape for all the aforementioned situations. The intent of making Section 2 a crime of parallel importance is demonstrated by the fact that the maximum sentence is the same as for rape - life imprisonment.

However -even though these two offences are similar- the decision to semantically separate these two offences and omit any reference to rape in Section 2 creates a two-tiered perception of the harm caused. This is because society views sexual assaults labelled as “rape” (correctly or incorrectly) as more serious than those making no reference to the term.[8] This distinction is likely a result of the fact the phrase “sexual assault” captures a wide range of situations.   

The result of having these two offences is that whilst rape in England and Wales is now agendered as regards to the victim, it remains gendered as to the perpetrator.  

Section 2: Why is the law like this?

The continuation of perpetrator gender bias within rape law stems from the failure of the 2003 reforms to be radical enough. As it was explained in Section 1 the default position for the new reforms would be gender neutrality, unless there was a ‘good reason’ to maintain a gender bias.[9] Two key arguments were put forward to main the gender bias perpetrator.

Firstly, since sexual offences are concerned with behaviour that society recognises as criminally culpable, the government took account of what the public conceived as rape. In the government’s view, the offence of rape was best understood by the public as penile penetration and, therefore, an offence only committed by men.[10] The report noted, “rape was clearly understood by the public as an offence that was committed by men on women and on men.” Consequentially, any extension of the definition of rape beyond actions including penile penetration made the Law Commission, “uneasy”.[11]

With this in view, the introduction of a gender-neutral definition of perpetrator would misrepresent the reality of sexual violence, namely, that most rapes are committed by men on women.[12] It is men who continue to pose an enormous threat to the safety of women in society. It was argued that a consequence of treating penile penetration like other forms of penetration would misconstrue the specific and gendered experiences of rape suffered by women and men. It was viewed (and in our view correctly) as of vital importance to continue to recognise that rape is largely the product of culture of misogyny and a tool of the patriarchy, which must be encompassed in any definition of rape.[13]

Secondly, it was put forward that penile penetration leads to greater harms and is of a particularly intimate kind. Penile penetration carries a risk of pregnancy and sexually transmitted diseases, which can lead to further suffering for the victim in the aftermath of the offence.[14] A failure to acknowledge this unique harm can diminish the experience of victims suffering trauma because of these adverse consequences. In particular, an unwanted pregnancy as a result of rape can have a long-lasting impact on the opportunity the woman has for education, employment, and any other future she had envisioned for herself and her place within her community. This interpretation of the greater harm in penile penetration was a view shared by society, across a broad range of political, religious, and cultural ideologies.  Penile penetration was therefore kept distinct from other penetrative acts in the SOA.

On this basis, the government concluded that there existed sufficiently good reason to set aside the assumption in favour of gender-neutrality and to treat penile penetration separately from other forms of sexual penetration.

Section 3: What are the problems with this law?

In response to the first of these reasons, public perception of rape has changed since Setting the Boundaries. It seems unlikely that if one was to write ‘Setting the Boundaries 2022’, the public’s definition of rape would mirror that of 2001. In fact, it is now the 2003 definition of rape that seems out of step with the diverse nature of sexual and gender identity pluralism in 2022. Socially, in the UK rape is regarded as person A (of any gender) penetrating person B (of any gender), in either the mouth, vagina, or anus – with either a penis or any object or body part.[15] The law should reflect our contemporary society and its views, as opposed to being backward-focused. In the two decades since the report was published society’s views have changed, and it is imperative that the law matches this societal change. After all, law is a social construct, constructed by the society it governs. If it no longer fits out accepted social definition, then the law should be reformed.

A further issue with the current law is its primary focus on “male” and “female” in its terminology, which limits the gender identity of non-binary individuals. In the years since the law was drafted, the legal and social rights of trans individuals and non-binary individuals have become much more prominent and socially accepted – and therefore the existing legislation remains out of step with these changes.[16] Therefore, the view that women cannot be charged with rape under the current UK law acts to suggest that penetration by a woman of person B without their consent is not as serious, either legally or socially, as the same penetration carried out without B’s consent by a man. This view also acts to exclude the experience of lesbian women from the law, and to minimise the extent to which the law considers non-consensual penetration or sexual touching of a woman by another woman.[17] Therefore, the existing law is failing to reflect the range of people and sexual experiences in society.

The second critique is that Setting the Boundaries focuses upon penile penetration as if the harm caused, through the risk of pregnancy and disease, means that penile penetration automatically causes greater harm than non-penile penetration. Whilst penile penetration and non-penile penetration do carry distinct sets of harms, it is important that the law should not be seen to not rank and weigh these harms through creating an unnecessary hierarchy of sexual offences that divides between penile and non-penile penetrations.[18] A consequence of this dividing of harms into ‘rape’ with penile penetration and ‘sexual assault by penetration’ without penile penetration is that survivors of non-penile rape often feel that their experience is belittled or minimised by the law, the criminal justice system, and the police forces (who are restricted by the laws available to them). As Powlesland notes, “gender-neutrality is not just about ensuring parity of sentencing liability… It is also about ensuring the label given to a crime is the same.”[19]

Furthermore, the reporting to the police of rape and sexual assaults by survivors is already low for many reasons, and the number of these reports that leads to a successful prosecution lower. The fact that survivors’ own recognition of what crime happened to them is not reflected in the same terms in the law only serves to add to reluctance to report these crimes and support criminal prosecutions of the perpetrators.

Consequentially, reform should seek to include within any definition of ‘rape’ a complete picture of the array of different ways that penetration can occur so that survivors feel as if the law properly reflects their lived experiences. The distinct nature of any harm can be maintained through offering specific labelling and sub-division of rape; however, all penetrations would be fairly labelled as rape. This might seem to an outsider merely academic. Nonetheless, to an individual who is the survivor of a non-penile rape, this is about the law correctly recognising the seriousness of the harm caused and about the law properly valuing their autonomy.

In addition to this, Section 2 is under inclusive with oral sex compared to Section 1. Currently, s.1 sets out that rape is the penile penetration of person B’s mouth, vagina, or anus without person B’s consent. In s.2 assault by penetration, this non-consensual penetration of person B is of their vagina or anus, but does not include oral penetration of their mouth. This in effect minimises the legal and moral harm of forcibly penetrating a person’s mouth without their consent. Non-penile rape can include penetration by another part of the perpetrator’s body (such as their finger), or any inanimate objects (such as baseball bats, bottles, broom handles). These instances of non-penile rape can lead to extensive physical, emotional and mental harm, and experiences of humiliation, degradation, and severe violence. Currently though, these acts are completely excluded from Section 2, however, if performed via penile penetration, they would be criminalised under Section 1.

A final issue we want to address in our proposed reform is that oral and anal penetration can carry the risk of sexually transmitted diseases; this risk it not isolated to only vaginal penetration.[20] This undermines the assumption leading up to the 2003 SOA in the 2001 Setting the Boundaries report, that penile rape is unique in carrying the risk of transmitting a sexual disease. Whilst it is less likely to pass through oral sex, it is possible to pass sexually transmitted diseases this way also.

Section 4: Reform Proposal 

Searching for the answer to this problem would not require lawmakers to start from a blank canvas. Gender neutral definitions of rape exist across various jurisdictions- Sweden[21] and France[22] being just two examples within Europe. Moreover, academics such as McKeever and Archard[23] have also discussed and/or proposed various proposals for a new law in England and Wales.

Our proposal is that rather than sexual offences law recognising an extremely narrow ‘crime of rape’ supplemented by a ‘broad crime of sexual assault’, we advocate for a more expansive ‘crime of rape’, which contains more nuance and fragmentation. This ‘crime of rape’ would continue to recognise the need to distinguish between rapes involving penile penetration and those which do not, however, rather than categorising the later as a category of sexual assault, “assault by penetration”, these would be viewed as a separate category of rape.

Firstly, Section 2 should be retitled. Rather than being titled “Assault by penetration”, Section 2 would become “Rape by non-penile penetration”. Secondly, coverage of sexual activities should be extended to mirror Section 1, and thus, Section 2(1)(a)- should include ‘mouth’. There is no logical reason to exclude non-penile penetration of a mouth when Section 2 already requires such penetration to be ‘sexual’ per Section 76.

Whilst there is a need for a comprehensive and holistic review of sexual offences laws more broadly, and such reforms should not be rushed, at the same time there is no barrier to implementing this extremely targeted reform, which only requires modification to Section 2 of the Sexual Offences Act.


[1] Sexual Offences Act 2003 s. 1

[2] Peter Rook and Robert Ward, Sexual Offences: Law and Practice (2004) Arch. News 2, 10, describe the SOA 2003 as "biggest reform ever undertaken in this area of the law."

[3] See Bethany Simpson, Why has the concept of consent proven so difficult to clarify? (2016) 80 J. Crim. L 97, 98-100, for a good outline of how the Sexual Offences Act 2003 modernised the pre-existing law.

[4] Home Office, Setting the boundaries: Reforming the law on sex offences. (2000) available at

[5] In particular, the concern related to the laws incompatibility with Article 6 (right to a fair trial), Article 8 (right to private and family life) and Article 14 (the right to non-discrimination in enjoyment of the Convention rights). For the government’s discussion, see Home Office, Setting the boundaries: Reforming the law on sex offences. (2000) at para 0.5.

[6] Home Office, Setting the boundaries: Reforming the law on sex offences. (2000) at para 0.6.

[7] Home Office, Setting the boundaries: Reforming the law on sex offences. (2000) at para 2.8.5

[8] For example, see Susan Estrich, Real Rape (Harvard University Press, 1988). Estrich discusses the various misleading conceptualisations of ‘real rape’ which detract from the victim’s own experiences; Philip N.S. Rumney, 'In Defence of Gender Neutrality Within Rape' [2007] S.J.S.J 481, 489. Rumney highlights the trend to ‘pit’ one group of victims against the other, the hierarchy of the perceived harm is then captured in the legal label given for the offence.

[9] Home Office, Setting the boundaries: Reforming the law on sex offences. (2000) at para 0.6.

[10] Home Office, Setting the boundaries: Reforming the law on sex offences. (2000) at para 2.8.4

[11] Ibid.

[12] For further discussion see, Yvette Russell, 'Thinking Sexual Difference Through The Law Of Rape' [2013] Law and Critique 24, 255.

[13] For example, see David P. Bryden & Erica Madore, 'Patriarchy, Sexual Freedom, and Gender Equality as Causes of Rape' (2016) Ohio St J Crim L 13,  299.

[14] Home Office, Setting the boundaries: Reforming the law on sex offences. (2000) at para 2.8.4

[15] See for a longer academic journal article arguing for the fact that women can “rape” others, even if the current UK law does not reflect that: Natasha McKeever. Can a Woman Rape a Man and Why Does It Matter? (2019) Criminal Law, Philosophy 13, 599–619

See also an online petition signed by 24, 426 people in the UK, seeking to change the SOA to enable “women to be charged with rape against males”, which was closed and the government indicated they have no plans to do this: Closed UK Parliamentary commission “Change the Sexual Offences Act so women can be charged with rape against males” Available at:

[16] See for an overview of the legislative and social changes since the 2003 SOA: Catherine Fairbairn, Manjit Gheera and Doug Pyper. Gender recognition reform: consultation and outcome. (Commons Library Briefing Paper Number 09079, 2020)

[17] Jeremy Robson, Lucy Newman and Andrew O'Hagan, Redrawing the boundaries: the adequacy of the Sexual Offences Act in addressing female sexual offending (2021) J. Crim. L 253- Considers how by failing to take female sexual offending seriously SOA does not properly protect female and non-binary victims of female sexual offending.

[18] Ada Inoma, Rape is rape: reviewing the need for gender neutrality in rape law (2019) Dur. L. Rev. 260, 18

[19] Paul Powlesland, Male rape and the quest for gender-neutrality in the Sexual Offences Act 2003 (2005)C.S.L.R. 11-18.

[20] NHS, 'Sex Activities And Risk' (, 2022) <> accessed 8 February 2022.

[21] Swedish Penal Code, Chapter 6 s1. ‘A person who performs sexual intercourse, or some other sexual act that in view of the seriousness of the violation is comparable to sexual intercourse, with a person who is not participating voluntarily is guilty of rape...’

[22] French Criminal Code, Article 222-23 ‘Any act of sexual penetration, of any nature whatsoever, committed against another person by violence, constraint, threat or surprise is rape.’

[23] Natasha McKeever. Can a Woman Rape a Man and Why Does It Matter? (2019) Criminal Law, Philosophy 13, 599–619