Though Cowards Flinch

The events of today have not been Ken Clarke’s finest – for all his intentions he has really put his foot in it, and is now carefully rethinking his opinions. On Sky News he has repeated over and over that “all rapes are serious” as though being prodded by the comms guy at Number 10. But where did he go wrong:

1. Is Ken Clarke being soft on crime?

At first he awoke negative sentiment from the right wing – both in his own party and the Labour party – for being soft on criminals. Clarke wants to reduce the time that a rape victim has to spend in court defending his/her accusation, but what seems at first a noble move has been brought up alongside incentives for offenders to plead guilty and see their sentences halved.

As yet he received no praise for then going to say:

I’ve never met a judge who confronted with a rapist as you and I would use the term in conversation would give him 12 months, that would be a crazy sentence.

Clarke wants to give credit to those who “put their hands up” – causing less grief for the victim, but then admits he hasn’t consulted any victims on this. Therefore it is on loose terms that Ken can say he speaks on behalf of victims. As it stands Ken cannot say for sure whether victims want full justice done, or less time spent in courts, he has simply assumed.

2. Are there differences in types of rape that should affect a sentence?

There are different types of rape (from spousal rape to rape of deception) but the question put to Clarke earlier today by Victoria Derbyshire of Radio 5 Live, is whether all types of rape be seen as the same in a court of law?

At first it would seem no difference should be made between rape from a “loved one” or a stranger, after all the point of crime, and not the relationship context, is the important element.

However the point Clarke was trying to make, about the hypothetical 18-year-old who has sex with a 15-year-old, is legally ill-defined.

He said:

If an 18-year-old has sex with a 15-year-old and she is perfectly willing that is rape, because she is under age, she can’t consent, anybody who has sex with a 15 year old it’s rape.

Statutory rape is not a concept familiar to English law, but the definitions of unlawful sexual intercourse are as follows:

- by a man with a girl under 13, section 5 Sexual Offences Act 1956, (Archbold 2004, 20-63 and Archbold 20-64).

- by a man with a girl under 16, section 6 Sexual Offences Act 1956, (Archbold 2004, 20-74).

According to the crown prosecution service, in a law court a judge can “exercise considerable discretion in relation to offences under section 6 of the Act.”

The advice the website gives prosecutors is “it may not be necessary to prosecute a young man with whom the girl has been having a consensual relationship.”

Gender is key here, and age is a major factor, but the point is individuals having sexual intercourse with girls younger than 13 is unlawful because the girl cannot legally consent, while there are legal grey areas around a younger man having sex with a girl younger than 16 where her maturity must be taken into consideration.

If that’s what Ken meant when he spoke about differences, then he’s half right (though he is wrong to say with anybody who has sex with a 15 year old it’s rape), he just didn’t put it across correctly. But he didn’t help himself by then talking about “serious” rape.

Which brings me on to the last error.

3. Are all types of rape serious?

“Are some rapes more serious than others?” Unity asks over at Liberal Conspiracy. ”So far as the law is concerned, the answer is “Yes”.”

But Unity only names examples where additional crimes have been committed (eg use of extreme violence – which of course carries its own penalties in law).

Therefore we are safe in saying rape is still rape, but extremely violent rape involves rape with an additional crime, which should be considered in the prosecution.

Such rape is not considered more serious, just different. Steeper penalties depend on the additional crime committed.

Clarke’s example, in a poorly exercised move, was date-rape, for which he opined some cases of date-rape aren’t as serious. There is simply no justification for this, and he probably knows this now, which is why every time you’ll see him talk about this issue from now on (including on tomorrow night’s Question Time) he will drum that message home like his job depended on it.

Conclusion

Ken is stuck beneath a rock and a hard place trying to ensure victims don’t spend long in courts, but he’s made a serious error not taking this to proper consultation. He should have been far more clear on what he meant by differences in rape, and he certainly should have avoided saying some types of rape – like date-rape – are not quite as serious. Often brevity is not the option to take.

(See also - http://biggersociety.wordpress.com/2011/05/18/75/ )