Sexual penetration, participation and new legislation : a critical note

Abstract

At the outset of this contribution the question was posed whether the Act has, by couching the crime of rape and compelled rape in a gender-neutral fashion, caused the definition of rape to lend itself to an interpretation that it is no longer a formally-defined crime, as it was at common law, but rather a materially defined crime. Through an analysis of the definition of the common-law crime and the anomalies presented in the past, coupled with an interpretation that is consistent with the constitutional interests sought to be protected, it is submitted that the crime of rape is and remains a formally-defined crime.