Labour are calling for Ken Clarke to be sacked, and half of Twitter is calling for his head on a spike. But based upon what I’m reading, he’s being crucified for saying something he simply did not say.
What’s the issue? The issue is that the government is proposing to allow people who plead guilty to certain crimes – including rape – a reduction of up to 50% the normal sentence. The current maximum is a third off the sentence. The reason for this is that it provides an incentive for a person who is guilty of a crime to confess, and enter a guilty plea at the earliest opportunity, saving everyone a lot of time and money. The incentive is necessary because without it there is no good reason for a person who is guilty of a crime to ever plead guilty – it’s far better to take your chances with the courts as you have nothing to loose and everything to gain.
At this point you may agree or disagree with the degree of the incentive, but let’s be clear that at this point we are simply talking an issue of the degree: should the incentive to plead guilty to a crime be a 33% reduction in a sentence, or should it be a 50% reduction.
People countering the new degree of incentive have latched on to a figure for the average sentence for rape (please note, these are not official figures, these are simply the figures as they were presented in the Radio 4 discussion, and subsequently reported by the BBC). According to people opposed to the change, the average sentence for rape is 5 years. With a guilty plea entered at the earliest opportunity, that sentence would be reduced to 2.5 years, and with a standard release on early license, the sentence served in prison would become 15 months.
Now, what follows is a discussion of the facts discussed. I’m not at this point considering what a sentence for various forms of rape should be, only in the figures being discussed. I have no particular knowledge of sentencing guidelines in the UK. I will, however, point out that the difference being discussed is 5 months: a person sentenced under current guidelines whould serve 20 months in jail of a 5 year sentence assuming everything else is equal.
So this is the complaint put to Ken Clarke on the radio:
If you are talking about halving it to two-and-a-half years and then a person gets out halfway through their sentence on licence which is usual, then we are talking about sentences of 15 months which have no regard at all for the gravity of the offence and gives no time for rehabilitation or training,
To which Ken Clarke responded:
That includes date rape, 17-year-olds having intercourse with 15 year olds..
Serious rape – I don’t think many judges give five years for a forcible rape frankly, the tariff is longer than that. A serious rape with violence and an unwilling woman – the tariff is longer than that.
The BBC interviewer interjected saying
Rape is rape, with respect
To which Clarke responded with:
No it’s not, if an 18-year-old has sex with a 15 year old and she’s perfectly willing, that is rape. Because she is under age, she can’t consent… What you and I are talking about is we are talking about a man forcibly having sex with a woman and she doesn’t want to – a serious crime.
I will put to one side for the moment the initial comment on “Date Rape”, but I will come back to it.
What Clarke has said here regarding sex between consenting teenagers is a serious issue. I may or may not agree with Clarke on this matter (I am far from sufficiently qualified to comment), but it is a widely held viewpoint that consensual sex between teenagers (where consensual is defined as ‘understanding what they’re doing, whilst not being legally able to give consent) is not rape in the same sense as non-consensual sex. Here, Clarke is arguing that this is reflected in the sentencing.
Whether one agrees with Clarke on this matter or not, it is important to understand this point. If Clarke is correct and the 5 year average sentence for rape is skewed towards leniency by cases of consensual sex between teenagers (and, I will emphasise again that I do not know whether this is ture), then claiming that rapists will be “let off” with 15 month prison senetences begins to look suspect. Whether you agree with Clarke or not, this is a reasonable line of defence to take.
The more thorny topic is the “date rape” comment (taken from the BBC):
He also said date rapes were included in the figures which could be “sometimes very confusing” adding: “Date rape can be as serious as the worst rapes but date rapes… in my very old experience of being in trials [from his time as a practising lawyer]… they do vary extraordinarily one from another, and in the end the judge has to decide on the circumstances.”
I am strongly of the position that any non-consensual sex is rape. I am also of the position than if the conditions of consensual sex are not met, that is rape. I have lambasted supporters of Julian Assange for claiming that sex without a condom is not rape: if the woman asks you to wear a condom, and you don’t, it is rape.
It is not, however, unreasonable to note the fact that there are degrees of rape. Before you complain about that statement, let me clarify what those degrees are: the scale rages from Very Serious through Gravely Serious to Extremely Serious. It is not trivialising rape to note that some forms of rape are extremely serious, and some are even more gravely so.
If I were to take serious issue with what Clarke has said it is this: Date Rape is not a valid term. If a woman is raped in her home, in a hotel room or an alleyway, that woman has been raped. The term Date Rape, I believe, trivialises that issue, and possibly makes it harder to convince duries to convict. The term Date Rape should be eradicated.
Ken Clarke may have initially worded his thoughts poorly (the initial “serious rape” terminology that many have seized), but it is quite clear he is not trivialising rape in the way that many seem to think he is.