A Swedish judge cleared a man charged with rape because the victim was a transgender woman with male genitalia.

 

http://www.huffingtonpost.com/2012/07/05/man-cleared-of-rape-transgender_n_1652489.html

 

 

was this a wrong call on the part of the judge?

 

The very definition of RAPE in most judicial systems is the penetration of either the Vagina, anus or mouth, if neither of these were involved, did the judge have any option but to dismiss the actual rape charge.   It could be argued attempted rape, but attempring to rape a vagina that did'nt exist is somewhat unclear.   So a charge of attempted rape was probably considered innapropriate.

 

In the UK rape is none gender specific,  It comes under the offences against the person act, Sexual offences Sect one, Rape, and then is classed as Vagainal rape, anal rape, rape being an act carried out without consent.   This superceded male rape and the sodomy and buggery acts.

 

One interesting precedent from UK law.

R versus John Matthews
The ruling which confirmed that vaginal rape of a transsexual woman may be prosecuted as rape
October 1996

This important and under-reported ruling confirmed that non-consentual penile penetration of the surgically-constructed vagina of a transsexual woman can, in law, be rape if the other ingredients of the offence are satisfied
Prior to this ruling Vaginal rape was based on the legal, technical description and clinical make of a Gender born females Vagina.
Which defence council were adamant that within the legal definition ‘’Vagina’ that a case of rape was not applicable as a surgically constructed vagina did not meet the clinical specifications and purpose of a natal born womans vagina, pleading that the charge be reduced to a lesser charge of indecent assault.
The RH Judge Hooper ruled
turn then to the question whether penetration of a male’s artificial vagina can constitute rape in the circumstances reflected by the admissions. Section 1 uses the word “person”. The words “whether vaginal or anal” relate to the intercourse. Indeed, the section might more happily read:
“A man commits rape if (a) he has sexual intercourse (whether vaginal or anal) with a person”.
Furthermore, rape being the non-consensual penile penetration of either of the two intimate orifices, I see no reason why, as a matter of public policy, that the offence is not committed.
In conclusion, therefore, in my judgment, penile penetration of a male’s biological artificial vagina can, in law, constitute rape. There is no dispute that, having resolved the matter in this way, I should direct the jury that, as a matter of law, the penile penetration of this complainant’s vagina is rape if the other ingredients of the offence are satisfied.

This was something, that had never been envisaged when drafting the GRA, that a transsexuals vagina was not included in the lawful description when it came to rape, this case law, precedent in law has overruled the clinical definition as far as the sexual offences act sect (1) vaginal rape. Rape is no longer gender specific under the sexual offences act now, it is an offence against the persons act rape, either anally or vaginally.

I will try and include further interesting examples of case law in future publications, regarding Hight Court Judgements relating to the failures of Health Services and public bodies being found negligent or at fault when dealing with the Our particular community and the laws and our entitlements to fair and unbiased treatment.

 

This post was edited by Cristine Jennifer Shye. BL at July 7, 2012 3:17 PM BST

I agree Roxann, but in law its rather a debatable point, a person for instance cannot be found guilty of attempting to steal a car that does'nt exist.

Ideally in an English court of law, A charge of sexual assault, common assault, even A conspirancy charge. Rape is now specific and by definition Anal or Vaginal if one does not exist, logically the charge of rape does not apply attempted or otherwise.