MCGREGOR

Sherry-Ann McGregor, Contributor

The Joint Select Committee of Parliament recently rejected the gender-neutral definition of rape which was proposed in the 1996 bill to amend the Offences Against the Person Act.

Present law

Rape is committed when a man has unlawful sexual intercourse with a woman, who at the time of the intercourse, does not consent to it, and he knows that she does not consent or is reckless as to whether she consents or not. Therefore, under the existing law, only a man can commit rape and only a woman can be a victim of rape. By this definition, sexual intercourse means vaginal penetration.

The act also creates the crime of buggery, which is committed when the penis is used to penetrate the anus. It can be committed against men or women and the fact that the parties may have consented is irrelevant. It is an absolute offence, and anal sex is therefore, unlawful.

The proposed new definition of rape

The 1996 bill had proposed a number of sweeping changes to the act by redefining sexual intercourse to mean the penetration of the vagina, anus or mouth of one person by the penis or other body part, or an instrument manipulated by another person. This may be interpreted to mean that rape could be committed by a woman against a man or woman or by one man against another man or woman.

This bill did not contain any express provision with regard to buggery. That is to say, the offence was neither redefined nor expressly repealed. This is what has fuelled the debate.

The debate

It has been argued that this would create a contradiction in the law. On the one hand, the act would retain the offence of buggery, so anal penetration would remain an absolute crime. On the other hand, the very same act would provide for a man to commit the offence of rape against another man if there was anal penetration without consent. Therefore, anal penetration of one man by another would be a crime if committed with or without the consent of the parties.

Would it therefore be possible for a man who is charged with buggery to be able to argue that the crime was impliedly repealed, since he engaged in sexual intercourse (i.e. anal penetration), with the consent of his partner?

The argument against making the definition of rape gender-neutral is that it might allow the offence of buggery to slip through the back door, i.e. homosexuality would be clandestinely decriminalised. This would hardly receive the blessings of the majority of the population, which remains largely homophobic, or by the Church, since there is still a firm belief that homosexuality is morally wrong and should remain legally wrong.

The proponents of the repeal of buggery contend that our laws are not intended to legislate for morality, and that what people do in the privacy of their bedroom should not be a matter for public discourse. However, history clearly shows that the debate has raged for nearly two centuries, and it seems that it is unlikely to end in the short term.