Sex, gender & rape statistics
Content note: rape and its definitions.
In evidence submitted to the Scottish Parliament last summer, Professor Alice Sullivan suggested that the recognition of trans women as women was distorting rape statistics. Her explicit argument is as follows:
The number of women accused of rape is small (436 between 2012 and 2018 - in UK law, rape is defined as nonconsensual penetration by a penis and most women accused of rape are technically accused of aiding or abetting the crime)
The number of people in prison who identify as trans is relatively high (about 2%)
Therefore, identifying trans women as women in official statistics risks inflating the number of women who are accused of rape and distorting our understanding of rape itself
Sullivan does not present any evidence that official statistics are actually being affected by this way of recording the gender of offenders (which has been in force since 2011). But she fears that they might be.
The subtext
I am skeptical about this argument, for reasons I will discuss below. But Sullivan’s submission also contains an important subtext. In paragraph 8, she states: ‘The issue of rapists identifying as women is not hypothetical’, concluding that, between 2012 and 2018, ‘436 individuals prosecuted for rape were recorded as women’.
Now Sullivan does not say this explicitly, but the implication is that these 436 ‘rapists identifying as women’ are not really women.
(The fact that Sullivan chose to quote only that line in her tweet about her submission suggests that she was well aware of what this subtext was and how it would be interpreted.)
It was this subtext that was picked up in The Times (now retracted) and by the journalist Helen Joyce, who said:
For those who don’t know, in English law the crime of rape requires a penis. Women are very occasionally charged if they have been central to commissioning or facilitating the rape. But almost all of these crimes [the 436 that Sullivan mentions] will have been committed by males who identify as women.
No evidence is produced to support this rather extreme claim.1 But those ideas spread because they conveniently echoed themes which are being used to attack trans rights across the board (as in this equally unevidenced piece published by the BBC).
Unfortunately for Joyce and The Times, their claims seem to be totally wrong.
Police Scotland (responding to an FOI) went through their own files regarding rape by women between 2016 and 2020 and found that, in every single case, ‘their involvement was art and part (aiding or abetting the perpetration of the crime)’. To be graphic for a moment, Police Scotland ‘can confirm that none of the females recorded for the crime of rape were involved in the physical act itself i.e. the penetration of a vagina, anus or mouth with a penis or surgically constructed penis’.
Back to the main argument
The evidence from Police Scotland also speaks to Sullivan’s explicit argument (set out above). In fact, I would argue that this is the best evidence we have about whether or not there have been significant changes in the way that rape is recorded and understood as a result of the 2010 Equality Act. To be blunt: if none of the women accused of rape are trans women, then Sullivan’s fears about distorted statistics would seem to be misplaced.
Undeterred by this countradictory evidence from Police Scotland, supporters of Sullivan’s argument have tried to find other ways to substantiate her claims. In particular, the barrister and activist Alison Bailey claims to have found evidence of a dramatic change in the number of women accused of rape after 2011.
Again, those claims seem to be totally wrong.
As Mallory Moore points out, Bailey is conflating two different data sources here: MoJ data on the number of people actually prosecuted for rape, and CPS data on the number of people formally charged with rape. The increase Bailey sees between the 2011 MoJ data and the 2012-2018 CPS data is, in fact, a reflection of the fact that many cases where someone is charged with rape don’t make it to court.
In fact, when using a consistent dataset over the period 2010 to 2020, Moore finds no evidence to suggest that there has been a substantial increase in the number of women accused of rape:
On average during the 10 year period, 2010 to 2020, there are 12.1 proceedings against a woman for rape per year. Of these, 5 per year were found guilty. The number of proceedings per year against women for rape in 2010 (before self-identification in the criminal justice system) was 12 and the number found guilty was 3. This count is entirely in line with the average for all the following years for which we have data.
Again, this leaves us with no reason to think that self-id in the criminal justice system is “artificially inflating” the number of women accused of rape.
[It is worth saying that any attempt to prove Sullivan’s case by comparing the data from before and after the Equality Act is going to face two fairly serious methodological challenges.
Data seems to only be available from 2010 onwards, which means that we only have one year of pre-Equality Act data to compare the later figures against.
People’s willingness to report rape has changed a lot over time, as has the police’s willingness to prosecute in different circumstances. To really test whether the 2010 Equality Act has changed how rape is recorded, you would need to find a way of controling for all these cultural/societal changes. (Or, at least, to control for any changes which coincide with the introduction of the Act in 2010/11.)]
Rape, a male crime
Underlying Sullivan’s argument is the idea that rape is a “male crime”, and that this is something we will lose sight of if we allow trans women who are accused of rape to be recorded as women in official statistics.
The fact that 98% of rapes are committed by men2 can not and should not be ignored. But there are lots of different ways of understanding what it means to say that rape is a “male crime”.
On Sullivan’s account, this is explicitly tied to how UK law defines rape: rape occurs ‘when a person intentionally penetrates another's vagina, anus or mouth with a penis, without the other person's consent’.
Therefore when Sullivan says that rape is a “male crime”, she seems to mean (a) that this crime requires a penis, and (b) that the presence of particular genitalia is what makes someone a man or a woman.
Focussing on the first part of that argument, it is important to remember that this is not how rape is defined in all countries. US federal law, for example, defines rape as ‘Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim’.
Does this mean that rape in the USA is not a “male crime”? Surely not.
The other side of this argument is whether the presence of a penis exhausts what it means for rape to be a “male crime”?
Now this is not my field of criminological expertise but, from my reading of the evidence, the presence of a penis is not a very useful explanation of why rape is so heavily gendered. In fact, commonsense understandings of rape as nonconsensual sex are arguably much more useful here, as they open the door to all of the many social, cultural and institutional factors that shape male sexual violence.
Conclusion
Ultimately, I see little evidence that recognising trans women as women has significantly changed the recording of rape statistics, or that insisting that the presence of a penis is what makes rape a “male crime” helps to further our understanding of crime (which is Sullivan’s stated ambition).
This claim would, as Jane Carnall points out, mean that “1 in 10 of the people who have obtained a [Gender Recognition Certificate] by providing medical records of their transition to a panel, have subsequently committed rape & been charged”.
This data comes from the Crime Survey for England and Wales 2020, which gives us yet another way of generating statistics about rape. The CSEW is a survey of the general population which asks people to describe crimes they may have been a victim of.