Redefining rape

You can’t take the penis out of rape law

Artillery Row

We can probably all agree that rape is a reprehensible crime — and acknowledge the inarguable statistics which show that it is a crime mainly perpetrated by male people against female people. We can certainly agree that rape conviction rates in the UK are a national shame hanging around the neck of the Crown Prosecution Service. We can all nod in agreement that something must be done to improve this atrocious lack of justice for women. 

However, when we look at acts of male violence against women, when we think about how to eradicate them, we can’t effectively do it through the misty lens of a performative liberal feminism. A feminist view which is unwilling to define who has a penis, and therefore who is able to commit an act of rape under UK law, renders such attempts meaningless. Perpetrators of rape are almost always men. Women can only be convicted of rape if they are an accomplice to a male, because they do not have a penis. The Sexual Offences Act 2003 is very clear:

Rape involves penetration of the vagina, anus or mouth by a penis, therefore a woman can only commit this offence as an accomplice.

Charlotte Proudman, a family law barrister, has launched a new project called “Right to Equality” with five aims, four of which are largely uncontroversial. At the bottom of the list however, is “Redefining rape”. The preamble to this aim, as with most smokescreens for something potentially more sinister, seems reasonable. Improving rape conviction rates and encouraging more victims to come forward sound like a noble aim — and one that most feminist women prioritise. However, caution is prudent. Proudman has regularly attracted criticism from a number of criminal barristers who note that she strays onto their professional turf without the requisite legal expertise. The Secret Barrister was scathing when he wrote:

Justified criticisms of Dr Proudman are properly made by her peers because her tweets repeatedly give misleading impressions about how the justice system works. She refuses to correct errors or engage with those who politely point out that she has the facts wrong.

Perhaps of equal worry to many women is her vehement stance on trans rights. Proudman is firmly of the opinion that “trans women are women” and also one of the “most marginalised people in society”. Alarm bells surely begin to ring when a woman who believes men are women begins talking about changing the law which applies in the area of male violence against women. How can such a woman be trusted to effectively advocate for women when she can’t accurately identify one? 

Women must be ready to fight any such changes

On the panel of “advisors” to the project is Jolyon Maugham of The Good Law project, which has become a fervent advocate for trans-identified men including supporting the appeal against the Bell v Tavistock judgment which sought to provide safeguarding for under 16s. Another is Mandu Reid, leader of the Women’s Equality Party, which just passed a motion in favour of gender self-identification. Applauding the project, you can find vicious trans activists like Katy Montgomerie. This type of support should signal to women to be alert and cautious regarding the motive of Proudman’s latest vanity project. 

Certainly the “Right to Equality” project makes its inclusion category very clear in a tweet which says:

We are proud to be trans allies. We stand with the LGBTQIA+ community. We support women, girls and marginalised people. We do not police who is a woman that’s reserved for the patriarchy.

The criteria of “marginalised people” being a slippery way to state that the project will also be advocating for men. 

Redefining rape to more effectively challenge male violence against women, whilst simultaneously refusing to acknowledge that such violence is overwhelmingly perpetrated by the male sex on the female sex, is not only obfuscation — it is incendiary. Women must be ready to fight any such changes. Right to Equality state:

To redefine rape as the crime of inequality that it is, the prohibited act should centre instead on a concept of force that, beyond physical force, incorporated multiple inequalities of power — such as age, race, disability, celebrity, caste, sexual orientation, gender identity and gender/sex — when used to coerce a sexual interaction

Trans activists and their allies like Proudman are acutely aware that women have been successful at bringing legal challenges which are slowly pushing back at the policy creep infringing on women’s rights. As Mermaids becomes subject to a statutory inquiry by the Charities Commission, ripples of anxiety will be experienced as to what will next dismantle the policy capture which has become pervasive over the last decade. It is noteworthy that in the aims of Right to Reality, “sex” is conflated with “gender” and “gender identity” is before both. How much easier it would be to reclassify the sex of the perpetrator if no one can identify the penis. How difficult it will be for women, potentially accused of rape under the new definition if a court would have to seek to balance the claims of who is the “most oppressed” in the power dynamic. Women will be placed in the position of having to argue against the claims of the “most vulnerable people in society”. 

Have women seen what we were not supposed to see?

Many women are of the opinion that the trans activist movement is a men’s rights movement. Men’s rights activists have long been angry about the Sexual Offences Act 2003, and the cry of “women rape too” winds through any discussion of consent and rape. 

If Charlotte Proudman and her merry band of advisors succeed in redefining rape law, then men who identify as women would be able to accuse women of rape under the criteria of “unequal power”. Men who identify as women will not appear in the male statistics of male perpetrators of rape — which is already happening but could increase. Women know that the harder it is to identify male people in law, the harder it is to tackle male violence against women. No one will any longer be able to say which sex is predominantly raping which other sex. These sleights of hand are deliberate. Included in the oppressed who will be represented are the newly established group of the “super-oppressed”, trans-identified men. 

When Proudman lauds another Advisor to the project, Professor Catherine Mackinnon, she again makes a clear link to the aims of the project in redefining rape:

In 2015, I had the privilege of learning from my mentor and here we are in 2022 reunited and united on trans inclusionary feminism & the need to redefine rape as a crime of inequality

Whilst she is adulatory about the trans-inclusivity of her advisors, she does not mention whether she has the support or has even sought the advice of the leading organisations in this area such as Centre For Women’s Justice, Ending Violence Against Women Coalition or Rape Crisis England and Wales. 

Though “Right to Equality” has only just launched, a blog which heavily criticises the project has already been removed from the platform Medium — along with the author who has published it elsewhere. It seems that someone is a little afraid of the challenge. Have women seen what we were not supposed to see and talk about?

Is Proudman so arrogant that she believed women wouldn’t spot the risk to their rights intrinsic to her project? Does she believe that a few Jackanory-style TikTok videos can sprinkle glitter in our eyes long enough to push through a definition of rape which blurs the lines between male perpetrators and female victims? 

What Proudman may find is that she needs women’s consent to change the law around rape and consent. If she remains tied to the mast of belief that men can become women, women will be saying no loudly. Charlotte of all people should remember that “no means no”. 

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