2 August 2017
Jess Leonard-Dunn graduated with a first class LLB Law degree in July 2017. She will be embarking on the NHS Graduate Management Training Scheme in Human Resources in September 2017. Her dissertation was supervised by Dr Sarah Beresford.

My dissertation deconstructed legal discourse surrounding ‘sexual activity,’ by focusing on the way in which statute and common law requires intimate touching to be of a prescribed type in order to, firstly, consummate one’s marriage, or secondly, be a victim of rape. Such sexual activity must be both penile and penetrative. I argued that such sexual activity is defined specifically and restrictively, which, as a result, unacceptably classifies some sexual behaviour as normative, to the exclusion of all others. My research aimed to show that by focusing on the requirement to penetrate in both the criminal and civil law, the idea is perpetuated that there is a hierarchy of sexual bodies, by which those who conform to this heteronormative framing, have access to more civil rights, or, better protection by the criminal law.

Under the current law, for a sexual offence to constitute one of rape, rather than sexual assault or assault by penetration, there must be penile penetration of the victim’s vagina, anus or mouth. This has the effect that a female defendant cannot be convicted of rape, unless acting as an accessory to an offence committed by a male perpetrator. This results in women facing charges of sexual assault or assault by penetration if they commit a serious sexual offence as principals. It is arguable that, since the offence of rape carries such a negative and serious stigma, to restrict the offence to penile penetrative sex is to negate the seriousness of assaults performed by female defendants, or conversely, to suggest that non-consensual penetrative sexual acts perpetrated by men are more damaging to victims and so ought to be punished as such.

The issue of penetration is also relevant the law of marriage. On drafting the Marriage (Same Sex Couples) Act 2013, it is reported that it became an impossibility for civil servants and MPs to define consummation and adultery without penetration. The focus lay heavily on an archaic definition of consummation from the case of D v A (1845), which held that sexual intercourse must be “ordinary and complete.” Similarly, for the case of adultery, Dennis v Dennis (1955) confirmed that there must be a “natural copulation of the sexes.” The present result is that same sex couples cannot consummate their marriage, nor obtain a divorce by reason of adultery. Indeed, s12 Matrimonial Causes Act 1973 requires consummation from heterosexual couples, and s1(2)(a) permits adultery to evidence a breakdown of their marriage, neither of which are relevant to the legislation on same-sex marriage.

In a liberal society, distinctions based on gender and sexuality are unsatisfactory, particularly when those distinctions are solidified in law, and deny specific groups access to civil and criminal remedies. For this reason, my dissertation suggested that legal reform to remove the focus on penetration, while retaining traditional concepts, is not an impossibility. I argued that Parliament failed to consider adequate definitions of sexual activity, and that a conversation ought now to be had with the aim of removing heteronormative expectations of sexual activity from the law. All relevant stakeholders should be consulted in relation to such reform, and it must be discussed freely and seriously if this inequality is to be removed. I suggested that the ultimate aim should be to draft a Bill which gives guidelines to judges on sexual activities which are covered by the law, but stress that these would be guidelines only and not be limited to the activities defined therein. Then, I argued ss1-4 of the Sexual Offences Act 2003 should be amended, by creating a new general offence of sexual assault which includes all sexual touching, whether penetrative or not. I also suggested that the Marriage (Same Sex Couples) Act 2013 should be repealed, and instead, the Matrimonial Causes Act 1973 be amended to apply to all couples.

I concluded that it is imperative that the current law is reworked to remove the requirement of penetration in civil (marriage) and criminal (rape) contexts, and that the approach I have suggested would set guidelines, not boundaries, for understandings of sexual activity to develop. That is not to say that the process would not be a difficult, timely, and expensive one. Nonetheless, legal equality ought to be paramount, particularly where intimate criminal offences, and intimate legal relationships are affected.