By Sunday Memba
‘’Viewing the erect penis as a per se signifier for consent and sexual pleasure subscribes to the notion that a man’s sexual desires are rooted in his penis and that rape is the result of desires which, once aroused in a man, cannot be controlled and for which women are to blame” – Victoria J. Dettman
Historical references to male rape date back to Biblical times. The Judeo-Christian bible tells the story of Joseph and Potiphar’s wife. Joseph is seduced by Potiphar’s wife but rejects the request. Miffed, Potiphar’s wife accuses Joseph of attempted rape, and the man is handed a custodial sentence.
What about if Joseph, although a slave, had accused Potiphar’s wife of attempted rape? Would the Egyptian society have charge Potiphar’s wife, or rather laughed off the claims by Joseph? Would modern society term this as attempted rape? These questions are inescapable.
Rape may be legally defined as the penetration of the victim without his or her consent, or the case of a victim involuntarily penetrated without his or her consent. The Sexual Offences Act also mirrors this definition but in in different terms. However, the statute does not demystify the issue of sexual arousal vis-à-vis consent in cases of male rape. Sexual arousal is majorly thought to infer consent. This is not true. Invariably, sexual arousal totally implies a reaction that is non-consensual.
Many, if not all, cases of male rape involve the man maintaining an erection. It is practically impossible for the female to fulfil her criminal and sexual needs if the male genitalia fail to respond positively. Thus, it must be noted, that a prerequisite for a male victim to be sexually assaulted is erection. Nonetheless, erection during this moment does not signify that one has consented to the activity; it only signifies physical arousal and not sexual desire.
Ejaculation does not imply that a man consented to the act. In some instances, victims of male rape ejaculate as an act of self-defence, to minimise the period and brutality of sexual assault. This is aimed at tricking the perpetrator of the offence that the crime has been completed.
Steve Pokmin in his paper “Rape: When the Victim’s a Man” argues that sexual offenders always make sure the man ejaculates. This is to ensure that, in case the victim seeks judicial intervention, ejaculation will serve to discredit his defence of “no consent”.
However, when a man is sexually abused, an erection and any subsequent ejaculation is a physical response rooted in biology, not in implied consent (Phillip M. Sarrel, M.D. & William H. Masters, M.D., “When Men Are Raped by Women”). A normal man experiences an erection for various reasons. In times of fear, peril, hazard, anxiety, anger or even when sleeping. Hanged men, it has been demonstrated, get erect and even ejaculate before death. It is worth knowing that these reactions are innate; they not justify that a man has made up his mind to erect.
Erection during male rape does not differ with other circumstances where a man erects because of purely biological or physiological reasons. To depict any of these circumstances as erotic seems to misconstrue the social and cultural context under which these erections arise.
A thin line exists between actual sexual desire and physical arousal. During the Reconstruction Period, slaves in the USA were forced to have sex with women while being whipped. They maintained erections and even ejaculated. Be that as it may, this activity could not be tantamount to sexual desire that leads to pleasure. The reality should be that an erection has nothing to do with a man’s sexual craving.
A woman who lubricates during sexual assault does not engage in consensual sex. Judicial organs will be reluctant to accept the defence that a woman consented to rape by the fact that she demonstrated positive female reaction to the unlawful sexual activity. On the other hand, a judge may, without an iota of doubt, accept that a man consented to sexual assault by the evidence that he erected and ejaculated.
The stereotype that men who naturally respond to an act of sexual aggression consent to the activity is thus misguided. The female anatomy, sometimes, also responds to sexual assault positively. Male and female are designed to respond positively to stimulation. Nonetheless, this response never infers consent.
Bad symbolism
Society has also portrayed the male genitalia in bad terms. Masculinity is inferred to represent violence, disorder, war and such other vices. Christopher hall, a sexual theorist explains that the male genitalia are always viewed by society as a gun, knife, a spear, a missile or something destructive. It is almost never thought to suggest something that inspires life or growth. Hence, the vulnerability of this organ remains unnoticed even now.
Hyde argues that female rapists are provided, by society, with a biological scapegoat that serves to justify male sexual violence. It is thus paramount that society ejects the stereotypes concerning arousal, and focuses on understanding the immediate threats women rapists pose on society.
Courtroom Daniels have constantly granted the male victim a stepmother’s affection in cases of sexual assault propagated by females. Gender-neutral laws, like the Sexual Offences Act, are still considered as gender specific codes. Thus, one of the impediments to rejecting sexual arousal as a defence is deeply rooted in the judge’s attitudes towards this issue. Alan Hyde opines, “If the penis could tell the narrative, then the truth could ooze out in black and white.”
Various cases demonstrate that victims of sexual assault can sustain erect and ejaculate without having the intent of sexual conduct. In “State vs. Karlen (589 N.W.2d 594, 606 [S.D. 1999])” the victim had fellatio performed on him till he ejaculated. However, the victim was asleep during this ordeal of sexual violence. The Supreme Court of South Dakota found this to be non-consensual sexual activity.
The appellate court decision in “State vs. Tizard (897 S.W.2d 732, 736 [Tenn. Crim. App. 1994])” mirrored the decision in the Karlen case. The facts of the case were that the accused, a doctor, masturbated the victim to obtain a semen sample. During this time, the victim was unconscious. Consent was thus not given.
None of these cases deal with the finer issue of whether a man, in control of his mental capabilities, could sustain an erection during sexual assault and still be understood as seen non-consensual. It is, however, a small leap forward on this issue. Jurisprudence on this unwanted sexual intercourse must accommodate the fact that men in their normal conditions can engage in sexual conduct without consent. Erection and ejaculation should not prejudice the courts to infer that the man has prima-facie consented to the activity.
Finally, terming an erection as legal approval to what would otherwise be deemed non-consensual sexual touching is just as illogical as trusting that a woman who lubricates during rape consents to the activity.
The Sexual Offences Act has avoided, like plague, to expound on the issue of erection as implying consent. Courts and scholars have had the same attitude. I hope this piece becomes a roadmap.
Email your news TIPS to Editor@nairobilawmonthly.com, and to advertise with us, call +254715061658 anytime of the day
