First, a warning. This is one of those articles where I use the word 'penis' a lot. Yes, another one. No, I don’t enjoy it much either, but sometimes it’s unavoidable. Sorry.
Now, some law. Specifically, the Sexual Offences Act 2003. Among other things, it defines the crime of rape, in Sections 1 and 5.
“Section 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.
“Section 5: A person commits an offence if—
a) he intentionally penetrates the vagina, anus or mouth of another person with his penis, and
b) the other person is under 13.
You might be aware that rape convictions are at grimly low levels and that the HM Crown Prosecution Service Inspectorate is warning that the criminal justice system is failing to deal properly with many cases where rape can reasonably be thought to have taken place. In other words, a lot of rapists are getting away with it.
That, of course, is big, bad news and deserves attention and remedy.
It’s from the foreword written by the Chief Inspector of the CPS, Kevin McGinty.
“'Rape is a crime that is committed primarily by men against women. However, it is also perpetrated against men and boys, so in this report we refer to the complainant and the suspect as "them" or "they", because penetrative offences are gender neutral.' [My bold]
And indeed, the 193 page report does avoid 'gendered' language for rapists and suspected rapists. Only once does the word 'male' appear, in a reference that reveals that in 450 cases of suspected or convicted rape that the inspectors examined, 444 of the suspects were male 'with the remaining suspects either female (five) or non-binary (one).'
Look again at that 2003 Act defining rape. It makes something very clear: rape involves a penis. Penetrating another person’s vagina, anus or mouth without consent using something else is not rape. In English law, rape requires a penis.
Yet here we have HMCPSI, a statutory body charged with ensuring that such laws are properly upheld and implemented, stating that rape is 'gender neutral'.
Now, with regard to victims, that’s entirely true. Anyone can be raped and under-reporting of rape against men and boys is a serious issue, though it should also be said that the crushing weight of evidence suggests that the vast majority of people who are raped are women, their vaginas penetrated without consent by people with penises.
But what about the perpetrators, the people who rape? Well, let’s try to see how Mr McGinty reached the conclusion that his inspectorate ought to avoid calling rapists and suspected rapists 'he', because, to repeat, 'penetrative offences are gender neutral'. Maybe that makes sense. Maybe.
In a very small number of cases, women have been convicted of rape under the principle of 'joint enterprise', because their support for men raping women (using their penises, remember) was culpably necessary for that crime to occur. But such cases really are vanishingly rare.
Perhaps there’s another reason Mr McGinty thinks that rape is 'gender neutral', despite his own figures showing the overwhelming majority of suspects are male and despite the law stating that rape must involve a penis.
Because this is 2019 and, as you surely know by now, dear reader, some women have penises. Get over it.
And when one of those women with penises uses their penis to penetrate, without consent, the vagina, anus or mouth of another person, how should the criminal justice system recognise that woman and that penis? Why as female, of course.
According to Freedom of Information disclosures to the Sunday Times, half a dozen police forces will allow a person who uses their penis to commit rape to have the official record register them as female, if that person identifies as such.
And, as we know from the case of the rapist Karen White, the logical consequence of recognising the gender identity of women with penises is that when such a woman is jailed, that woman can be housed in the female prison estate. That is how the rapist Karen White was able to use Karen White’s penis to commit more sexual offences (but not rape) against more women in New Hall prison.
What are the implications and risks of allowing people with penises – penises that they have used to commit rape – to state their own gender identity and have that identity recognised by the criminal justice system? Is it at least conceivable that people who are willing to break the law to commit acts of serious sexual violence might also be willing to lie about their gender identity, to exploit rules intended for transgender people by dishonestly claiming that they are in fact trans? What does it mean for official statistics and the policy choices based on those statistics if rapists and their penises can be recognised as either male or female, according to nothing more than their own expressed preference?
I do not know the answer to those questions and I do not believe they have been properly addressed, much less answered, by many of the people responsible for making and implementing policy here. And perhaps they never will be. Perhaps it’s too late and the ship has already sailed. Because this week a senior figure in the criminal justice system declared that rape – meaning those who are raped and those who rape – is now 'gender neutral'.