This Article explores the penetration requirement and considers the following: (1) whether it is a male or reasonable person understanding of what is so violative of a woman's body that it should be referred to as rape; and (2) what punishment should be imposed. This Article explores problems raised by the "foreplay" issue. Understanding that rape is not sex, in order to deem a violation, one must understand how a violation is characterized. In addition to defining what is violative, the foreplay issue raises questions about characterizations from a male perspective concerning when a male is placed on notice by the female that she either no longer wishes to engage in the activity and that he should stop or that this is unwelcome conduct altogether and that he should stop. The focus has been on the male's notice rather than the desires of the female to stop the conduct. An additional problem is that the crime of rape may be lessened if penetration is deemed insignificant. If penetration, a male prerequisite for the crime of rape, is not used to determine severity of the violation, then there may be some concern that stiff penalties may no longer be imposed, that is, if men comprehend the violation, then it is not a violation. If stiff penalties are not imposed, then there could be a significant increase in rapes. Part I of this Article discusses how society defines criminal conduct and why society punishes this type of conduct. Part II explores the punishment theory, with regard to rape, from the woman's perspective of pain and pleasure. This Article then compares what is pleasurable for women, and from this perspective, what should be punishment for conduct that is deemed violative from the woman's point of reference of pain and pleasure. Part III addresses some solutions and perhaps, redirection in defining and punishing the crime of rape. Finally, Part IV concludes that the severity of the invasion into the private, protected sphere of a woman's body should be defined in women's terms and punished accordingly.
Lundy Langston, No Penetration - and It's Still Rape, 26 PEPP. L. REV. 1 (1998).