R v John Matthews 1996

Facts

C was a trans woman who underwent SRS, that is the surgical removal of the male genitals and the creation of a vagina and vulva, in November 1994. She was raped. The case is pretty obscure but is significant both in how rape and trans bodies have been seen by the court.

Issue

The issue in the case was a result of the sexual offences act 1956 (replaced by SOA 2003) which specified under s1:

is an offence for a man to commit a rape; to rape a woman or another man.

A man commits rape if (a), he has sexual intercourse with a person, whether vaginal or anal, who C at the time of the intercourse does not consent to it, and (b) at the time he knows the person does not consent to the intercourse or is reckless as to whether that person consents to it.

The court had to decide whether a trans woman who was vaginally raped could satisfy this condition given the distinction between a reconstruted vagina and that of a natal woman. They determined these differences were:

The artificial vagina is made from colon, not from vaginal tissue.

Being made from colon, the artificial vagina is lined by columnar epithelium, whereas a natural vagina is lined by squamous epithelium.

uring sexual arousal the lining of the natural vagina undergoes a sweatinglike reaction, known as transudation, the result of which is the production of lubricating fluid. An artificial vagina may produce mucus from the glands in the columnar epithelium, but his is a different process from transudation.

The natural vagina terminates at the cervix at its inner end, whereas the artificial vagina has no cervix.

At or just within the opening of a natural vagina are the two openings of the Bartholin’s Glands (which produce a small quantity of a highly lubricious fluid); the artificial vagina does not have these openings.

A natural vagina opens on the vestibule of the vulva, between the labia minora. “C” does not have a labia minora.

A natural vagina has the physiological capacity for enormous expansion, such a during childbirth. An artificial vagina does not have this capacity. A natural vagina has a normal female clitoris which consists of some erodible tissue and is covered with sensitive glands and a hood of tissue. The artificial vagina has a clitoris constructed of penile tissue.”

Held

It was rape

References