Pre-sexual offences discussion: Penetration

Last week we concluded our discussion on consent. I hope those discussions were clear enough. However, if any questions remain, please email me.

We are carefully inching our way toward a discussion of the offences contained in the Sexual Offences Act Cap 8:03 (the Act), including the offence of rape created by Section 3 of the Act. Rape is not the only offence created by the Act, but it is one of the more serious offences created by the Act, and as with all other offences, it is important to know conduct by a perpetrator is necessary for the offence of rape to be committed. Aside from proving that an alleged victim did not consent, and or that the accused could not reasonably believe that the alleged victim was consenting, the prosecution must prove that the accused engaged in penetration with the alleged victim or caused the alleged victim to engage in penetration with another person. The question, therefore, is: “what is penetration?”.

The Merriam-Webster Dictionary defines penetration as ‘the act or process of penetrating’. In sexual terms, we usually understand penetration to mean penetration of the vagina or anus with a finger, penis, or foreign object. In non-professional or specialist circles, oral sex (either fellatio or cunnilingus) is seldom referred to as penetration, but oral sex is indeed penetration. An examination of the mechanics of such acts makes this clear. Guyana’s Sexual Offences Act does not rely on dictionary definitions of the term “penetration,” but has coined a comprehensive definition which is highly complex. This was done with good reason. The Act defines “penetration” as follows:

“Penetration” means any intrusion, however slight, and for however short a time, of any part of a person’s body or of any object into the vagina or anus of another person, and any contact, however slight, and for however short a time, between the mouth of one person and the genital or anus of another, including, but not limited to sexual intercourse, cunnilingus, fellatio, anal intercourse, and female to female genital contact; and –

(i) where penetration is by the penis, the emission of seminal fluid is not necessary to

prove the penetration;

(ii) penetration is a continuing act from entry to withdraw;”

As I said, the definition of the term “penetration” is quite complex, and often requires attorneys, magistrates, and judges alike to peruse it several times before they are satisfied that they understand the definition. It is therefore safe to assume that non-legal members of the public may have some difficulty fully deciphering this cipher. As such, we will break down this definition into parts, and examine each part to fully illuminate the whole’s meaning.

First, let’s examine:

“...any intrusion, however slight, and for however short a time, of any part of a person’s body or of any object into the vagina or anus of another person…”

The term “intrusion” in this part of the definition (and for our purposes) means unlawful entry into a place or thing. The definition mentions the intrusion by any part of a person’s body or object into a vagina or anus. As such, if a person inserts any part of their body (such as the penis, fingers, toes fists, foot) or an object (such as a dildo, vibrator, or any foreign object) into another person’s vagina or anus, and the person does not consent or there is no reasonable relief in consent, this is an “intrusion,” and rape. This section of the definition also says that the intrusion need be “however slight and for however a short time”. This means that even if the very tip of any of the body parts or foreign objects mentioned above is inserted into a person’s vagina or anus for even less than a second, and there is no consent or reasonable belief in consent, this is still penetration, and rape. No person can therefore argue that their conduct did not constitute rape because they only inserted the tip of their finger, or a dildo etc. into the victim’s vagina or anus. Additionally, no person can claim that their conduct did not constitute rape because they only penetrated the victim for a second, or some other short period of time. This is still rape. This definition really shows us how easy it is for rape to be committed.

Second:

“any contact, however slight, and for however short a time, between the mouth of one person and the genital or anus of another…”

This section of the definition deals with oral sex. In essence, any contact between the mouth of an accused and the genitals of another person without consent or reasonably belief in consent is rape. By this definition, there is no need for the lips or tongue to be inserted into the anus of vagina since “any contact” whatsoever is enough. As such, if a woman asks a man to perform fellatio on him, but he refuses, and she kisses his penis anyway, this can be rape. If a woman refuses a man’s advances to perform oral sex on her, but he persists, and in struggling against him, his lip merely brushes her vagina, this can be rape. These are just some of the circumstances in which this section of the definition applies. The possible factual possibilities are many since “any contact” does not require much for the conditions to be satisfied.

Third:

“...including, but not limited to sexual intercourse, cunnilingus, fellatio, anal intercourse, and female to female genital contact…”

This section of the definition lists some of the sexual activities which may constitute rape if they are performed without consent or no reasonable belief in consent. It is common knowledge that sexual intercourse in the absence of consent or reasonable belief in consent constitutes rape. However, my interaction with different people suggests that not as many people are of the view that oral sex (fellatio and cunnilingus) or mouth to anus sexual activities in the absence of consent or reasonable belief in consent also constitutes rape. This is a dangerous misconception.

Earlier in life, I volunteered with an NGO to facilitate sexual reproductive health sessions with high school students, and I am sad to say that many of those students, some from top high schools, admitted that they were the perpetrators or victims of much of the conduct being discussed here.

Fourth:

“...where penetration is by the penis, the emission of seminal fluid is not necessary to prove the penetration…”

In previous court proceedings, persons accused of rape have admitted to penetration in the absence of consent, but have also argued that their conduct did not constitute rape because they did not ejaculate (emit seminal fluid). This argument makes no sense, and has, rightly so, long been rejected by courts. Guyana has, out of an abundance of caution, seen it fit to expressly spell out this position in the legislation.

Fifth: “... penetration is a continuing act from entry to withdraw[al]…”

The need to spell out this reality was born from a rather interesting development in the law of sexual offences.

As we saw in a prior column, consent can be given and then withdrawn before sexual activity commences, or at any time after sexual activity commences. As such, sexual activity, including intercourse, can begin as consensual sexual activity, but if either party withdraws that consent, and the other party refuses stop after consent has been withdrawn, the sexual activity which takes place after consent has been withdrawn is rape.

Additional points

These additional points have nothing to do with the definition, but I think it necessary to say some things about them due to some common misconceptions which exist in Guyanese society, and perhaps further afield.

The fact that a woman’s vagina becomes lubricated during sexual activity does not mean she is consenting to that sexual activity. A lubricated vagina is not a sign of consent, but a function of biology, as this is what the body tends to do naturally to prepare itself for penetration. As such, no person should mistake lubrication for consent. The courts definitely do not.

Similarly, the fact that a man has an erection does not mean that he is consenting to sexual activity. A man’s penis can become erect due to any tactile stimulation, such as the kind which occurs if his penis rubs against his leg, or his pants. Men also get erections as they sleep, and their testosterone levels spike at certain points. A man who turns down a woman’s advances, but still ends up the victim of her fondling may also get an erection since, as stated earlier, this is just how the body operates.

Interestingly, I have spoken to many women who are of the view that men are incapable of being raped (by women particularly) because, in their view, men are incapable of being forced or otherwise coerced/intimated into sexual activity by women. I have also spoken to women who are of the view that a man who claims to have been raped, but who had an erection during the sexual activity he claims was rape, is lying. Of course, both views are wrong, and deeply problematic.

To conclude, the term “penetration” in the Sexual Offences Act is indeed highly complex and takes some work to understand. Simultaneously, it intentionally casts an extremely wide net as it aims at capturing and criminalising a great many sexual acts if they are done without consent or reasonable belief in consent.

By familiarising themselves with this definition, the Guyanese populace will be in a better position to recognise sexual offences committed against themselves and or others, and or identify what conduct they need to avoid to ensure they do not engage in conduct which constitutes a sexual offence.