Oh you’re a guy, how could you be raped by a woman, that makes no sense: towards a case for legally recognising and labelling forced-to-penetrate cases as rape | International Journal of Law in Context | Cambridge Core

    ii. what is rape?

    Before considering the experiences of forced penetration victims, some consideration, however brief, must be given to the socio-legal discourses surrounding rape. Historically, rape was a crime committed by men against women as the property of their fathers or husbands, and was defined as “carnal knowledge of a woman against her will” (hale, reference hale.1971, p. 627 ). The first legal definition of rape was provided in the Sex Offenses Act of 1956, which defined rape in terms of a man having non-consensual sexual intercourse with a woman. of the Sex Offenses Act of 1967, which decriminalized homosexual acts in private between men over the age of twenty-one. however, the ‘heterosexual’ nature of rape remained until the introduction of the Criminal Justice and Public Order Act of 1994. This amended the Sex Offenses Act of 1956 to include a broader definition of rape, which included cases non-consensual anal and penis penetration. sexual intercourse, thus legally recognizing cases of male-to-male rape.

    The terminology, focused on non-consensual vaginal or anal intercourse, was retained until the introduction of the 2003 Sex Offenses Act, which replaced references to sexual intercourse with a broader definition of intentional vaginal penetration and not spoiled. the anus or mouth by a man’s penis. footnote 6 expanding the definition in this way recognized ‘[s]imilarities between different forms of penile penetration of the body’ (rumney, reference rumney2007, p. 484). therefore, the center of the understanding of rape is the non-consensual penetration of the penis, historically of the vagina and, more recently, also of the mouth and anus, understanding the victim as the one who is penetrated and the perpetrator as the perpetrator. penetrator. this is reiterated in the fact that non-consensual and non-penile penetration is dealt with under the separate offense of assault by penetration. footnote 7

    Reading: How does a woman rape a man

    Despite contemporary recognition of male-on-male rape, rape continues to be viewed as a gendered crime, perpetrated by men against women. As Brownmiller argues (reference Brownmiller 1975, p. 343), “merely to learn the word ‘rape’ is to receive instruction in the power relationship between men and women.” this is not an unreasonable argument, as the vast majority of reported rape victims are women. In fact, the most recent detailed statistics document that, on average, 85,000 women and 12,000 men report having been raped each year (Ministerio de Justicia et al., 2013, p. 6). the fact that the majority of victims are women, combined with the history of rape involving non-consensual penile-vaginal penetration and the historical illegality of sodomy, means that the term ‘rape’ is associated with constructions of men as perpetrators and women as victims this in turn associates rape with particular constructions of the male and female body. women are constructed as sexually passive, vulnerable, and guardians of sexual activity (muehlenhard, reference muehlenhard, anderson, and strikeman-johnson 1998, p. 30), while men are the initiators of sex and, therefore, are actors sexual and predatory (weiss, reference weiss2010, pp. 284, 286). power is seen as residing in the male phallus, and the requirement of forcible penetration of the penis in the setting of rape possibly discursively constructs the penis as a weapon, used primarily against women. As Brownmiller explains (reference Brownmiller 1975, p. 5), “rape became… man’s basic weapon of force against woman…. his forced entry into his body…became the vehicle of his victorious conquest over his being…the triumph of his manhood.’

    These discourses, while accurately reflecting the gendered nature of rape, with women as the primary victims of male perpetrators, make it difficult for men to be easily recognized as rape victims. in fact, despite the reform of the legal definition of rape to include forced anal and oral penetration of the penis, which legally includes men as victims, it is well documented that men are still not easily recognized in this way. as Weiss sums it up:

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    The gender of the rape also means that male victims are often effeminate from their experience of being forcibly penetrated by another man (Fisher and Pina, reference Fisher and Pina2013, p. 58).

    The current difficulty of easily recognizing men as victims of the rape of other men may be reinforced by the fact that, in law, only men can be legally recognized as rapists as a result of the requirement that the perpetrator penetrate to the victim with his penis this builds men mainly occupying the space of the aggressor in the rape, rather than that of the victim. this, in turn, makes it unsurprising that the female perpetrator-male victim paradigm has yet to be seriously considered. in fact, the discursive construction of the penis as a “weapon of force” (brownmiller, reference brownmiller 1975, p. 5) used normatively against women makes it very difficult to conceive of alternative experiences, particularly when male victims are forced to penetrate to the aggressors. such cases challenge the idealized paradigm of female victim and male perpetrator. they also challenge constructions of the male body, and therefore masculinity, in more radical ways than male-to-male rape cases, due to discourses of power in a patriarchal culture that associates power and domination with men and the phallus. this is because, in cases of forced penetration, although the man continues to act as the penetrator, this occurs without consent and thus the penis is used as a weapon against the man himself, rather than himself. this fundamentally distorts understandings of power and subordination in heterosexual sexual encounters and rape, with power apparently residing in the woman and the perpetrator’s vagina, rather than the man and the penis, in such cases.

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