Shh - it's the R Word

Kenneth Clarke has become the latest politician to say something stupid about rape and is now experiencing the wrath of feminists everywhere.  As a massive proponent of improvements to rape investigation and prosecution, I am not so sure this is a sensible bandwagon - apart from for Ed Milliband, who probably needs to jump on any wagon passing at the moment.

Every crime in British statute has a list of "aggravating" and "mitigating" factors used by the judge for passing sentence.  This is because while law is black and white, real life is accepted to be scales of grey.  To suggest that rape is any different is nonsensical, not to mention unhelpful to judges.

Aggravating factors might be:

• Group offence (gang rape).
• High level of violence or threats.
• Child present/nearby.
• Element of trespass/burglary.
• False imprisonment/repeated rapes.

Most rapes don't contain the above, hence why they are aggravating factors rather than just a common feture of the crime.  It's hard to think of any mitigating factors for rape, as with murder, but the limited mental capacity of the offender could perhaps be one.

So it is commonsense to suggest that rape is like other crimes, and varies in its degree.  Where feminist activists get into difficulties is in trying to put across that even those rapes that appear less violent/savage on the surface, can have just as profound an impact on the victim.  In the same way, a "minor" street robbery or burglary can traumatise a victim significantly, whilst someone who has been stabbed or beaten up might shake it off.  As a criminal, you are dicing with the mental health of your victim whatever crime you inflict on them, and the results are unpredictable.  How you take this into account when sentencing is tricky.

Kenneth Clarke is an intelligent man, and I think he understands the above.  However, I fear he has fallen into the date rape trap.  Just because a rape happens after the offender identifies his victim from among his drinking party, or within the nightclub, and sets in course a series of events that will result in him getting to have sex - with or without consent - does not make it a less serious example of rape.  It may in fact make him a predatory offender, repeating his crime week after week with no one ever reporting it due to what they see as their own "guilt" in allowing it to happen.  Equally, it may be a guy who went home with a girl fully expecting consensual sex, who makes an ill-judged and repellant decision to force her when she changes her mind.  Both are date rapes, but perhaps the premeditation and recidivist nature of the first offender merits a greater sentence.

As well as misunderstanding the nature of date rape, I think that Mr Clarke has also made the mistake that many judges in both rape and violence cases make: that along with the sentence, they are passing a judgment on whether the offence has actually occurred.  I recently sat in on an ABH trial where two defendants were found guilty, and the judge summed up saying, "I am willing to accept there was an element of self-defence, and that you may have thought he had a knife."  At which my jaw dropped, because this was the main feature of the defence and by finding the defendants guilty, clearly the jury had not been convinced.  Yet it seemed the judge had license to override that and sentence the men as if they were innocent.  

I see this in rape cases too, where having been found or pleaded guilty, the defence put forwards mitigation that "she gave confusing signals" or "they were drunk", and this is then used by the judge to reduce the sentence when those excuses have already been discounted by the jury.  In Kenneth Clarke's mind, date rapes are harder to prove and often have conflicting evidence.  He is muddling up the seriousness of a genuine case of rape, date or otherwise, with examples where rape cannot be proved.

We all know that Kenneth Clarke thinks prison is a waste of money.  And that he would (and will) happily see violent and predatory offenders for numerous crimes walk free from court with nothing but the terrifying prospect of "probation" hanging over them.  No doubt he feels the same way about rapists.  

But it is legitimate to state that rape, like all crime, comes in many forms, and that sentencing should reflect that.  To shut down the debate, and claim otherwise, does not advance the cause of justice.


 

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Rape Crisis is a charity that provides support and information for rape victims, and assistance to Rape Crisis Centres across the UK. A proportion of proceeds from my book are donated to it.