The slow strangulation of political debate in Britain continued apace yesterday with the depressingly tiresome ‘debate’ over Ken Clarke’s comments in a radio interview. Victoria Derbyshire’s hectoring of the Justice Minister and the furore that then engulfed a spluttering, garbled explanation of a nonetheless valid idea may just have sounded the death knell of decent triangulated policy discussion between politicians, the media and the public.
This isn’t even about the issues any more, the game (for there is no other word for it) that politicians must play now involves the following rules – ‘you shall be pressed, prodded and probed 24/7, good ideas will be largely ignored, and if you step outside the parameters of what we consider to be appropriate, even for one moment and as a result of an innocently garbled explanation, we will seek to destroy you’. Twitter is the main culprit of course, that rolling, trolling vessel of visceral huffiness was in full swing yesterday, and depressingly so.
There is a group out there who want, perfectly understandably, for rape, all rape regardless of circumstance or supposed mitigation, to carry a heavy sentence. Ken Clarke is arguing that, to free up prison space and court time, some lesser crimes can carry a shorter sentence if a guilty plea is offered, and some rape cases may fall within that range. It’s a great opening for a great debate and, amidst the outrage, I have read some interesting, thought-provoking pieces on either side of the argument.Â
I can’t say this is an area that I have much prior knowledge of but I have to say that I lean towards Ken Clarke’s approach to the problem. It’s all very well holding out for the strictest of punishments for those who commit rape but with lamentable conviction rates of 4%-6%, that doesn’t seem to be working so well. A clearly distressed rape victim was also on the same Radio Five Live show that Ken took part in and her point was that her attacker was released too early and allowed to commit a similar crime. A harrowing account and it is difficult to argue against but a shorter sentence being better than no sentence is a valid, if not necessarily always convincing, argument the other way.
As for the comments that Clarke made and the rebuttal that all rapes are as serious as each other, that is surely not the case when any crime has a sliding scale of seriousness that can be applied and requires a judge and jury to make sense of, not to mention a sliding scale of punishments that can be given out. Highly emotive the subject matter may be but the country, and the media in particular, needs to find a way for our political leaders to discuss issues without facing directionless outrage and knee-jerk calls to resign. Again I lament the garbage, the noise that Twitter fuels itself with day in and day out. Some say politics doesn’t ‘get’ the Internet; I simply say the Internet is often too immature for politics.Â
That’s not to say that politicians are entirely blameless. Ed Miliband is probably thinking that he had a good day yesterday because he managed to request that a Cabinet Minister resign at PMQs. Frankly the Labour leader should be ashamed of the cynical opportunism that he has displayed and the race to the bottom that he is partaking in.Â
During the Labour leadership contest, Ed stated that “when Ken Clarke says we need to look at short sentences in prison because of high re-offending rates, I’m not going to say he’s soft on crimeâ€. Where was that open-mindedness and willingness to be constructive yesterday when the news cameras were rolling and cheap soundbites were on the table? I’m a voter up for grabs but I was failed to be inspired by Iain Gray in opposition and I remain uninspired by Ed Miliband’s alternative to the coalition so far. Labour needs to learn that attacking the Government of the day is only one side of the coin, they need to promote what their alternative argument is or else voters like myself will assume there isn’t one.
So how does this come about? Well, the best that I can come up with is that some people just enjoy being outraged. If someone claims to be angry while still believing that Clarke considers all rape to be a serious crime then I don’t know how that can be reconciled. Either that or some people have a pre-conceived notion of who and what a Conservative is and they will take any opportunity to cement that view. People may say ‘but we didn’t put words in Clarke’s mouth’ but what did he say? That date rape and sex with someone underage are different to forced, violent attacks against the person’s will? Well, they are different, hence their having different definitions and different words required to describe them. Should that difference be reflected and recognised the courts? Is a date rape attacker less likely to commit the crime again after a few years in prison compared to a more physically violent attacker? Obviously I don’t know but that’s part of the necessary debate that should be taking place but many, Ed Miliband included, are ducking it because they’d rather just paint Clarke as a bogeyman.
For me, this is a different situation to a similar furore surrounding former Conservative MSP Bill Aitken earlier this year, the difference being that that situation seemed to involve a suggestion of what women were doing in a certain area anyway giving the impression that they were partly at fault for what happened to them whereas today’s debate is strictly surrounding what sentences should be handed out for which crimes. Bill certainly had to resign, Ken absolutely does not.
If anyone outside the coalition believes that the extension of plea bargains is a bad idea then argue it, if they believe we should pay for more prisons argue for it, if they believe rape (under any circumstances) is so serious a crime that it should carry significant jail sentences they should argue for it but if you sit back with no contributing ideas of your own and only choose to get involved when someone is perceived as having slipped up, then shame on you I’m afraid.
The bottom line is, at around 5%, conviction rates for rape cases are abysmal and I for one don’t believe that 95% of people who bring charges (predominantly women) are just making stuff up. The Conservatives first contribution to the area was to suggest men accused of rape should be anonymous which is a spectacular missed opportunity at fixing the main, substantial problem. That surely has to remain the focus of this issue if the scourge of rape and sexual assault, so long a taboo subject, is to be improved upon.Â
Ken Clarke, albeit indirectly, is showing real grit and leadership by getting closer to the nub of the issue and is taking his argument to the public via the airwaves. Even if his plans are misguided, he deserves a coherent argument the other way at least, not his head in a vice and calls for resignation.
#1 by douglasmclellan on May 19, 2011 - 7:46 am
I agree 100% with you. The spectacular knee-jerk reaction to the entire topic does indeed show how hard it is to debate a topic without descending into emotional and, frankly, unhelpful language.
#2 by Colin Urquhart on May 19, 2011 - 7:55 am
I dont think he should resign, but I do think it was right that he apologised/clarified his comments. What you fail to reference in this post is that the public perception of rape is further damaged by Clarke’s comments – suggesting that some rapes are more serious than others does nothing for the confidence of women who may or may not be about to report a rape.
#3 by Jeff on May 19, 2011 - 9:09 am
Good point Colin, I never thought of it that way. I guess saying you get serious rape crimes and more serious rape crimes is better but I think one would do well to suggest Clarke’s comments are a green light for any such crimes in any way. I think a Minister taking a dispassionate, non sugar-coated view where he treats the electorate as adults is a good thing overall.
Another minor point is that we shouldn’t assume that the victim is always female, which is another way to prevent victims coming forward (if they are male).
#4 by Gryff on May 19, 2011 - 9:45 am
If anything the distortion of Clarke’s words were probably more damaging to confidence than what he actually said. If everyone involved, from the interview up to Milliband had corrected the comments, and addressed the issue that would have been a far better way of addressing the potential problem. Suspect milliband was more motivated to undermine coalition from the right than he was to support rape victims.
#5 by Dan on May 19, 2011 - 7:58 am
If the outcome of this furore is Ken Clarke resigns, is replaced with a right-winger (I can’t think of another socially liberal Tory that can replace him), and sentencing policy shifts to the right then would that be the ‘result’ those outraged by his comments were seeking?
I think not.
#6 by Doug Daniel on May 19, 2011 - 10:30 am
On the contrary Dan, it’s exactly what the right-wing media want. In fact, all a Justice Minister needs to do to win favour in the press is bring back hanging, and he’ll be revered as a hero.
As for the non-media people who are outraged, well, as Jeff says, some people just enjoy being outraged. “Outraged from Tumbridge Wells”, indeed.
#7 by Dan on May 19, 2011 - 12:02 pm
The right wing media and Tories want it no doubt. I was more referring to the Left who have run with this, of which there are plenty.
It’s a shame as I think tomorrow’s Question Time in Wormwood Scrubs will now be dominated by this as opposed to the substance of the policy.
#8 by Doug Daniel on May 19, 2011 - 12:18 pm
I don’t think it would have mattered too much – even if Ken Clarke hadn’t minced his words, the debate on QT would still have run the way it will run tonight, i.e. Outraged from Tumbridge Wells telling us how appalling it is to even dare to suggest that any rapist should get away with not being locked away with the key melted and his manhood castrated.
Strangely enough, I’ve missed most of the past couple of QTs and not really been too bothered. Since the election two weeks ago, any political programme without Scottish politicians on it seems completely irrelevant.
#9 by mav on May 19, 2011 - 8:42 am
Bravo Jeff, for wading in on acontroversial topic on the side much of the media have attacked. All the better for making a coherent well argued case. I would add that behind the stuttering garbled half-formed thoughts that the normally articjlate Justice Secretary offered yesterday, was the argument that while rape is rape, we already differntiate in sentencing. Violence, pre-meditation, repeat offences are all factors that increase the sentence. The proposal being looked at is that we allow expressions of guilt, remorse to reduce the sentence, with a view to improving what are atrocious conviction rates in England and Wales. It seems worthy of consideration at least, but may now be ignored.
Out of interest, how do Scotlands figures on conviction look? If they similar, how would a similar suggestion be treated if it was made by Kenny Macaskill? And to demonstrate the politics we live in, would the reaction be the same if made by John Lamont?
#10 by Stuart Winton on May 19, 2011 - 9:02 am
On the contrary, Jeff, I think the furore has the same basis as that relating to Bill Cash.
Part of the problem with saying that some rape cases are less serious than others is the implication that the victim may be in some way culpable in some cases.
#11 by Jeff on May 19, 2011 - 10:26 am
I don’t think Ken was in any way saying that the victim was in any responsible for the crime and, with respect, that smacks of having a pre-conception of what a Tory is and what he thinks that I mentioned in the post.
Shoplifting is a minor crime compared to a bank heist, that doesn’t mean the shop was in any way responsible for the crime. It’s not a difficult concept.
#12 by Fergus on May 19, 2011 - 9:02 am
I absolutely agree, and am a little ashamed to admit that my first instinct on hearing Ed Milliband at PMQs was to think “ooh, what a nasty Tory! Ken must hate women and love rapists!”. Of course, on listening to the interview and reading a little more, I moved over to thinking “poor man, what an unfortunate choice of words”.
I’ve been surprised by the number of otherwise perfectly reasonable friends frothing at the mouth over this one.
On a completely different note, I wonder why you chose 1258 as the starting point for British political debate. My historical knowledge is anchored in the Middle East, so to me 1258 means the fall of Baghdad to Hulegu Khan’s Mongol army. I’m guessing that didn’t constitute a beginning for British political debate. Am I being foolish and missing something else that happened in 1258 closer to home?
#13 by Gryff on May 19, 2011 - 9:42 am
The first date whereby an English King had to accept he was in some small way limited by ‘Parliament’ in the Provisions of Oxford. If I remember correctly.
#14 by setindarkness on May 19, 2011 - 9:12 am
I take issue with the date 2011 – unless you want to count the coma it has been in since about 1997
#15 by douglas clark on May 19, 2011 - 9:59 am
Jeff,
You might find the following interesting:
http://tinyurl.com/5sul972
It appears that, of rape cases that come to court, approx 58% result in a conviction. For some reason in the case of rape, and only rape, the comparison is between the number of cases reported to the Police and the conviction rate.
I don’t see why that is the case.
#16 by Jeff on May 19, 2011 - 1:26 pm
That’s very interesting indeed Douglas, thanks for the link, and definitely a key bit of knowledge for anyone more involved in arguing and debating these issues.
Either way, it does sound like there is a particular problem with rape victims coming forward to report their crimes; although how helpful plea bargains will be when conviction rates are actually already 58% is very debatable indeed. Yeah, a key stat for sure that one!
#17 by Indy on May 19, 2011 - 9:59 am
I like Ken Clarke but I do think it is pretty concerning that a Justice Secretary does not know tthe basics of the existing laws on rape. He made the argument a number of times that consensual underage sex is classed as rape. It isn’t. He kept talking about what he had experienced when practicing law many years ago which just isn’t relevant. He should have been properly briefed before he went on that radio show. He clearly wasn’t and I can’t see him staying on in office, not because of his proposals on sentencing but because his remarks exposed firstkly a woeful ignorance of a policy area he ought to understand because he is in charge of it and secondly an appalling attitude to rape in distinguishing between “forciblle” rapes and others.
It’s astounding frankly that a politician could make those remarks. I am afraid he has to go, which is a shame because as I said I do generally like him but he has damaged himself beyond repair in my opinion.
#18 by Nicola on May 19, 2011 - 10:05 am
I think that rape is always serious but sex between a 16year old and a 15year old which is consensual is not as serious but its still classified as rape.
I wish there was grown up debate in this country but then again part of the problem is the media as well as social media like twitter. Its the media that makes the opposition go a bit strange and attack things that they might take a different line on in government out of opportunism.
you say “Labour needs to learn that attacking the Government of the day is only one side of the coin, they need to promote what their alternative argument is or else voters like myself will assume there isn’t one.” but not giving an alternative is very useful because then anyone who isn’t a Tory or a LibDem comes to their side to oppose the government and then they will see Labour on their side and they will consider voting for them.
#19 by Doug Daniel on May 19, 2011 - 10:34 am
It’s incredibly tiresome when politicians call for other politicians to resign, especially when it’s over a slip of the tongue, rather than for some massive cock-up. But this is what happens when the media is allowed to determine the boundaries of political debate and behaviour. Look at the past four years in Holyrood, where Labour were calling for every cabinet minister to resign at some point, always over non-resignation matters. If they succeed, they get the headlines in the next day’s papers and it’s high-fives all round. Ed Milliband doesn’t care about what is best for rape victims, all he cares about is getting one over the government, otherwise all he would have done was urge Ken Clarke to clarify his comments or make an apology for them.
People bemoaned the dullness of the Scottish election campaign, but with politicians scared out of their wits about putting a foot wrong, then there is no chance of them fostering debate that may invoke outrage in the right-wing press. The fact is the political sphere has been turned into the Colosseum, and anyone who strays off-message is just putting their arm into the lion’s mouth. Every election we see old-style politicians retiring who, like Ken Clarke, are from ane ra where politicians weren’t afraid to speak their mind, and soon we’ll be in a situation where all we have are those trained in the art of using lots of words to say absolutely nothing at all.
The Tory party missed a trick by not electing Ken Clarke as leader when they had the chance. Instead they have a media puppet, just as Labour do. Milliband’s plan is to do exactly what Cameron did: sit back and forego any attempts to define what his party stands for, and stroll into 10 Downing Street on the back of the media discrediting the outgoing government for him, rather than by putting forward a better vision for his country.
#20 by Indy on May 19, 2011 - 10:35 am
You are wrong Nicola. Consensual sex between a 16 year old and a 15 year old is not classified as rape. Not in England and not in Scotland.
#21 by Indy on May 19, 2011 - 10:42 am
Doug take a step back and look at exactly what ken Clarke said.
During the earlier radio interview, Mr Clarke was questioned about the fact that the average rapist’s sentence is just five years.
He replied: “That includes date-rape, 17-year-olds having intercourse with 15-year-olds.â€
He went on: “Serious rape, I don’t think many judges give five years for a forcible rape, the tariff is longer than that.
“And a serious rape where, you know, violence and an unwilling woman, the tariff’s much longer than that.â€
Firstly he is wrong when he says that 17 year olds having (consensual) sex with 15 year olds is classed as rape. It is not.
Secondly the clear implication of his remarks is that “date rape” is not the same as “a serious rape where, you know, violence and an unwilling woman”.
“An unwilling woman” for God’s sake. All rape involves a victim who is unwilling. That is the definition of rape.
#22 by James on May 20, 2011 - 1:19 pm
Yes, that last bit. I still hope he doesn’t go, but that was a dreadful use of language.
#23 by Doug Daniel on May 19, 2011 - 10:55 am
Incidentally, I seem to be missing something in the debate over seriousness of rapes. I would be fully behind any plans to have statutory rape completely reclassified as something else other than rape (although I’m intrigued by Indy’s comments that this is already the case). However, I don’t see where the difference lies between “date rape” and other rapes. Surely forcing someone to have sex with you is the same, regardless of whether you drugged the victim or just used brute force? In some ways, you could even argue date rape to be worse, since it’s blatantly pre-meditated.
So have I just misunderstood what “date rape” means?
#24 by oldchap on May 19, 2011 - 11:46 am
You’ve got it right. Apparently Ken Clarke confused what “date rape” means, thinking that it applied to the 15 year old / 17 year old situation.
http://www.bbc.co.uk/news/uk-13436429
It does just sound like he’s been tripped up on something small rather than making a fundamental error of judgement. I agree with Jeff.
Frankly, whatever I hear someone calling for a resignation these days it makes me tend towards favouring whoever has “gaffed”, at least seeing what it was they actually said before passing any kind of judgment. It seems in politics there’s no room for anyone to make a simple mistake when they’re speaking any more – in fact it’s near impossible to be *human* without being called to quit. Fine, let’s deal properly with people blatantly not up to a job, but let’s allow a bit of room for people to have a reasonable debate about things, or (dare I suggest) learn from their mistakes. Surely that would be good?
#25 by Gavin Hamilton on May 19, 2011 - 10:57 am
Good post.
I thought Ken Clarke muffed what he was trying to say and got himself in a bit of a fankle.
What he is being accused of is neither what he believes nor what he was trying to say.
He clarified.
The furore is political opportunism as part of the cut and thrust of politics of one party to try and undermine another and has little to do with the topic in question.
As an aside, I note you pick the start date for political debate as 1258.
If my history is right this represents the Provisions of Oxford – generally considered to be Englsnd’s first written constitution.
I thought it interesting that you made this point in the light of the recent debate re Scotland’s future.
I believe that over 300 years of being an integral part of Britain we have probably more things that bind us together with the rerst of Britain than those that separate us.
There are many traditions and culltural aspects – some English in origin – that we have come to share us our traditions and culture.
Parlaimentary democracy
Shakespeare and
Morecambe & Wise
So I think your point about 1258 is quite important. As Scots we have become part and parcel of what is now a British tradition of parlamentary democracy. This is fundamental to who we are and what we have that is good.
#26 by Doug Daniel on May 19, 2011 - 12:08 pm
Hmmm, your bit at the end is a bit puzzling. Parliamentary democracy is not exactly an exclusively British thing. In fact, if anything, the British version is just about the worst example you could think of, which is why Holyrood’s debating chamber was built to encourage modern parliamentary democracy – consensual rather than combatitive. Besides, there was a Parliament of Scotland almost 500 years before the union of Scotland and England.
Is it not perhaps a fact that most of the things people could name that “bind” us with the rest of Britain are actually things we share with a vast swathe of nations in Europe and elsewhere, which would make your point a bit redundant? Unless you think we should form one big global country…
#27 by Indy on May 19, 2011 - 11:13 am
To me what Ken Clarke was saying is that a “forcible” rape i.e where there is evidence that the victim was forcibly subdued by his or her attacker is more serious than a “date rape” which most people understand as the scenario where someone “takes advantage” of another person who is inebriated or drugged and not in a position to give consent.
I think in the first place that distinction is not really helpful but more’s to the point it taps into an idea that I really thought was dead i.e. that a victim of rape has to be physically overpowered before it counts as a “serious” rape.
It harkens back to the old days where a rape victim had to prove that they had resisted. Obviously someone who is so drunk or drugged up that they don’t really know what is going on is not in a position to resist. But in many cases where the victim is completely sober and aware of what is going on they will not offer any resistance because they are scared of the consequences – in much the same way that most of us, if we were cornered by a grizzly bear, would try very very hard not to make it angry in case it ripped us to pieces. That is instinctive behaviour, it is what nature tells us to do when confronted with something more dangerous than ourselves,
#28 by Aidan Skinner on May 19, 2011 - 2:57 pm
In the interview he said “Date rape can be as serious as the worst rapes”. He wasn’t trying to underplay anything.
#29 by Gary on May 19, 2011 - 11:30 am
Actually Gavin, parliamentary democracy came from Scotland. Although I’m sketchy on the exact details, I believe that the English Parliament took the lead from the Scottish parliament on things such as voting on measures and the relation between Crown and Parliament.
As an interesting sidenote, the word “voting” I believe is Scots in origin as the English Parliament took this procedure from the old Scottish Parliament before it was adjourned.
#30 by Una on May 19, 2011 - 11:45 am
After all the furore I listened to Ken Clarke’s interview expecting to be outraged, and I wasn’t. He was perhaps too matter-of-fact on a sensitive subject, but I want politicians to look at issues rationally, discuss honestly, and come to a decision based on evidence, not based on avoiding hysteria.
I understand the sensitivity about rape, given the long battle to have ‘date rape’ and rape within marriage accepted as serious crimes. I understand the fear that the progress there has been could go backwards.
But I would have hoped as a society we had moved on far enough to discuss rape sentencing without hysteria – the twisting of his words and the outrage is far more damaging than his original comments were. There are many battles to be won to change societal attitudes towards rape, but we need to bring good people along, not censor debate.
#31 by Indy on May 19, 2011 - 12:36 pm
Una nobody twisted Ken Cklarke’s words.
He said “Assuming you and I are talking about rape in the ordinary conversational sense – some man has forcefully with violence…” Ms Derbyshire then intervened, and said: “Rape is rape.” Mr Clarke responded: “No it’s not.”
He said that, it is recorded.
I think we all know what he was trying to get at. Nonetheless what he actually said was appalling.
#32 by Jeff on May 19, 2011 - 12:43 pm
I think that wording has been twisted as it has been placed out of context.
Victoria was saying ‘rape is rape’ in the context that all such crimes should be sentenced the same (or at least similar) way. Ken with his “No it’s not”, was saying that that is not necessarily the case and some crimes involving rape may not need attract as lengthy a sentence as the most severe cases.
I think that is a valid debate but, looking at some of the headlines today, Clarke is being painted as someone which I am quite sure he is not. I’m not denying he’s fluffed his lines and to an extent brought it on himself but it’s still deeply depressing nonetheless.
#33 by Indy on May 19, 2011 - 1:01 pm
Well let;s put it in context.
Clarke: Serious rape, I don’t think many judges give five years for a forcible rape, the tariff is longer than that. And a serious rape where, you know, violence and an unwilling woman, the tariff’s much longer than that. Secondly, half way through they are released but they are released on licence so they’re still supervised. They can be recalled if they do anything wrong on licence – all this ‘they’re let out after half the time’ which is… really right I didn’t introduce that but that’s where we are, but it is subject to licence and subject to recall. So they are the idea is at that stage you’re trying to stop them doing it again and eventually they will finish the sentence and they’re let out.
Derbyshire: But how, how will it, I’m sorry, excuse me…
Clarke: …what you need is an appropriate sentence. The reason for giving a discount for pleading guilty when the judge is imposing the original sentence is because the woman is going to be put through the whole ordeal again. If…
Derbyshire: If I had been raped why would I be encouraged to go to the police when I know full well that the rapist could get just over a year in jail. Why would I put myself through the trauma, the examinations, the hell of it, when he might be out in 15 months?
Clarke: Well, I must stop you repeating this total nonsense…assuming you and I are talking about rape in the ordinary conversational sense. Some man has forcefully, with a bit of violence.
Derbyshire: Rape is rape, with respect.
Clarke: No it’s not, and if an 18-year-old has sex with a 15-year-old and she’s perfectly willing, that is rape. That’s ’cause she’s underage, can’t consent. Anybody has sex with a 15-year-old, it’s rape. So what you and I are talking about, we’re talking about a man forcibly having sex with a woman and she doesn’t want to. That is rape. Serious crime, of course it’s a serious crime. And I’m very glad that people do now got to the police and report it. There used to be a taboo against it, in a crazy way.
Derbyshire: Won’t this measure be counter-productive and put women off going…
Clarke: It certainly will if campaigners give the impression that the rapist will only get 12 months anyway. That’s just nonsense, tabloid newspaper nonsense. He will get many years and…but…in order to encourage him to stop raisoning it out and putting her through the ordeal again instead of the present discount you would get under previous tough governments and all that of a third, you….we…in a case where a judge thinks it’s right, where he really has shown contrition and is not making things worse can get a half off, and this is being parodied.
Derbyshire: Let me bring in Gabrielle…
Clarke: …by people who don’t know how long rapists get…and are claiming…
Derbyshire: The five years, the five-year stats come from the Council of Circuit Judges.
Clarke: And they include the 18-year-olds having sex with 15-year-olds.
Derbyshire: The five years come from the Council of Circuit Judges.
Clarke: And they include date rapes which, eh, date rapes can sometimes be very confusing. A straightforward…
Derbyshire: So is date rape not as serious?
Clarke: Date rape can be as serious as the worst rapes. But date rapes, as you are quite right to say very old experience, of being in trials, they do vary extraordinarily one from another and in the end the judge has to decide on the circumstances. But 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.
Derbyshire: I’m not saying they would get 12 months, I’m saying after your plans are brought in that’s what we’d end up with. Gabrielle in London, hello.
—-
Couple of points I would make.
1. If you are the Justice Secretary of England and you are going onto a radio prpgramme to talk about the sentencing of rapists you should know what the law says – and the law does not count consensual underage sex as rape unless one partner is under the age of 13. So his example of the 18 year old an his 15 year old girlfrend is wromg.
2. He persistently used the argyument that “forcible” rape or “violent” rape is more serious than other forms of rape. Indirectly that contributes, in my view, to the perception that a “real” rapist must physically overpower his victim – which in turn supports the contention that a “real” victim should try to fight back and is only “really” innocent if physically overpowered.
3. If you are any kind of a politician, far less the Justice Minister, and an interviewer puts it to you that rape is rape say yes. If you say no you cannot really “clarify” that sufficiently at a later stage to restore any kind of trust.
#34 by Jeff on May 19, 2011 - 1:13 pm
Indy, thanks for the transcript, I’ve been looking for that for a while and had to just listen to it a few times this morning instead.
In response to your points:
(1) You say “If you are the Justice Secretary of England and you are going onto a radio prpgramme to talk about the sentencing of rapists”. But was he? He was going on to talk about short sentences across the whole Justice brief. Maybe he should have known in advance and maybe he should have brushed up on what the law is and is not but I think it’s a bit harsh to pick too harshly at this aspect of the interview. Alan Johnson didn’t know what the rate of NI was in a Sky interview when he was Shadow Chancellor. Simple facts and data slip the mind and it’s actually heartening to see that Cabinet Ministers do it too.
(2) You are correct that he repeatedly said that forcible rape is more serious than other forms; but that does not necessarily mean that ‘other’ forms of rape are not serious. I simply don’t see it your way when you suggest Clarke’s saying that you would have to fight back before the courts will consider the crime serious.
(3) I am wary of any situation where the media gets to set the rules. Context is important and politicians should ideally be able to trust that anyone quoting them will make the context clear. I know it doesn’t work that way in practise but let’s at least agree that should be the aim?
#35 by Scott on May 19, 2011 - 2:31 pm
The interview had been trailed the day before as being about general sentencing policy and the specific proposal to reduce sentences for early guilty pleas. It was Victoria Derbyshire who introduced sexual offences into the interview (prompted by a piece by Jack Straw which suggested that – contrary to the position he had taken in relation to the 1/3 reduction for all cases – it should not apply to rape and sexual offence cases.
As you know I work in the law. Despite 20 years of experience and a tolerable grasp of some areas there are others – even within topics in which I work on a day to day basis – where I would need to check points of detail before carrying out specific work within that area. There is a lot of law about. That law changes every day with cases and statutes and statutory instruments. I think his conflation of unlawful intercourse with an under 16 and rape was unfortunate – but the Lord Chancellor is typically not responsible for substantive criminal justice policy (that’s the Home Office) although has responsible (through responsibility for the judiciary and other issues) for the overview of sentencing policies.
Against that background it should be noted that the interview was meant to be specifically on sentencing. Unless people advocate mandatory sentencing then there is surely an agreed acknowledgement among people speaking on the issue that there are mitigating or aggravating factors in relation to any crime at the sentencing stage. Distinguishing between a serious version of an offence and a less serious version of that same offence does not detract from the seriousness of the offence in the first place. Murder is a serious offence but why do some people have a punishment tariff of 8 years, some 15, some 30, some whole life &c &c? because there are gradations of seriousness. As you note Jeff you can have degrees of seriousness in relation to a serious matter. For example, in a less emotive context, I could say that I think X who tortures a person for a period of time before murdering them has committed a more serious murder than a person who stabs another in a barroom brawl. Both are serious but the former feels worse, and I think sentencing would reflect that. The same general principle applies in relation to sexual offences. Clarke’s point – which when I listened back to the interview seemed tolerably clear – was that in some situations there were aggravating factors, in some the court would take a different view. Indeed in certain cases where complainer and accused are close or there is a relationship of trust between the two these factors could potentially serve as aggravating factors in the eyes of the court.
As you and Una below note this is a completely different situation from the Bill Aitken case which appeared to exhibit a highly offensive “she was asking for it” mentality. Clarke’s position was very far from that. Indeed, his interview made clear that one motivation behind applying the policy to sexual offence cases was to deal with the trauma of giving evidence and to make things easier for the complainer. There may be some truth in this. But opinions can differ on that – for example, as a counterpoint to Clarke one could argue that early pleading is typically only where there is a weight of evidence against the accused and not based on considerations of sentencing (and there is empirical data to support that) – but that is a debate that should be allowed to be held in a mature way, rather than with the jerking of knees from politicians yesterday.
#36 by Indy on May 20, 2011 - 9:27 am
The thing is Scot that the law on statutory rape changed as a consequence of legislation which went through Westminster. Ken Clarke was an MP. He voted on the Bill. It is not unreasonable therefore to expect him to know what he had voted for, particularly as he is now the Justice Secretary.
#37 by Indy on May 20, 2011 - 9:35 am
Him saying that forcible rape is most serious is the whole problem Jeff. The problem with what Ken Clarke said is not that there may be different degrees of seriousness associated with rape, it was the way he associated the seriousness of the offence with the level of force or violence used – and also the fact that he spoke about serious rapes involving an “unwilling” victim.
Let’s take another scenario to “date rape” – suppose a care worker rapes a mentally disabled person that they are responsible for? There may be no force involved in that whatsoever. The victim may offer no resistance. There may be no violence involved.
Nevertheless in most peoples eyes I would suggest that would be an extremely serious offence and would warrant a very harsh sentence.
It’s not simply a semantic point. Slips of the tongue can often reveal what people actually think and I am afraid what Ken Clarke revealed was a very dated attitude towards rape.
#38 by Jeff on May 20, 2011 - 9:46 am
Ok, you’re right Indy, a lot of what you say there is more than semantics, particularly the ‘unwilling’ part as it’s not even possible to reconcile a willing partner as a rape victim that I can see.
In generalising the point, Clarke did manage to dismiss and/or trivialise certain crimes. I still don’t think fixating on it is particularly constructive if it’s just words and those words are at odds with what the actual policy is, or is going to be.
#39 by Indy on May 20, 2011 - 9:53 am
I think the policy is dead in the water and rightly so. I am not being Daily Mailish about it. I very much support emptying our prisons of petty offenders and people with mental health and/or drug & alcohol problems who are simply warehoused in prisons because we have nowhere else to put them.
Equally however I believe that people who commit serious and violent offences should be imprisoned and serve their full sentence. For me – and I suspect most people – rapists would come into that category.
#40 by Jeff on May 20, 2011 - 10:01 am
I think the policy is dead in the water and rightly so. I am not being Daily Mailish about it. I very much support emptying our prisons of petty offenders and people with mental health and/or drug & alcohol problems who are simply warehoused in prisons because we have nowhere else to put them.
Equally however I believe that people who commit serious and violent offences should be imprisoned and serve their full sentence. For me – and I suspect most people – rapists would come into that category.
#41 by Una on May 19, 2011 - 1:18 pm
But he was referring to length of sentences, where each case is considered individually. Perhaps it shouldn’t be, but he was stating facts as they stand. I agree his wording was insensitive, but I do think there is a deliberate misreading going on. I don’t see any underlying attitude that blames women or belittles the crime – unlike Bill Aitken’s appalling comments about the Glasgow case.
The example he gave to illustrate his sentencing point was a 17 year old and a fifteen year old having consensual sex, this being classed as ‘statutory rape’ due to her being underage. Surely you’d agree that would deserve a shorter sentence, if indeed it is classed as rape? (in fact I think he’s incorrect here, as the girl would have to be under 13 for statutory rape- but that’s another issue).
I can’t believe I’m standing up for Clarke on this, but I really don’t think he was saying what people are implying he was.
#42 by Indy on May 19, 2011 - 5:20 pm
There are only so many times that Ican say that a 17 year old and a fifteen year old having consensual sex is not classed as statutory -or any other kind of – rape.
That is not what the law says in England any more than it is what the law says in Scotland.
It may be forgiveable for most people not to know that – as most people commenting on this story evidently do not – but the Justice Minisyer should be conversant with the law of the land.
#43 by Una on May 19, 2011 - 11:36 pm
I said in my post that I thought he was wrong about the law, Indy. Glad you confirm it. He clearly made a mistake there.
#44 by Kris on May 19, 2011 - 11:45 am
If conviction rates are low, what is the incentive for any rapist to take an early plea? Shall we discount it down to nil for the plea? They still won’t bite because the stigma of the Register remains- unless abolishing that is Clarke’s next genius move.
This isn’t nicking sweets or failing to pay a fare or tv licence- which people do go to jail for- this is about a heinous crime.
Freeing up prison space and genuine rehab should be aimed at low level crime and not implying that any category of rape is low level, which is insulting and offensive in the extreme.
The fail was in the face of such low conviction rates that
#45 by Jeff on May 19, 2011 - 1:01 pm
Fair arguments Kris; is it even clear though to what extent rape will fall into Ken Clarke’s plans for freeing up court time and prison space? He was taken down this path by the interviewer but did he accept the premise of the question too readily? It doesn’t seem clear but, yes, I definitely take your point that if plea bargains don’t increase conviction rates then there is little use in having those 4% that are convicted in prison for less and less time for serious crimes.
#46 by Davie Park on May 19, 2011 - 11:45 am
OMG! Do we have to give up reading Shakespeare if we become independent?
When do they come to take my Morecambe and Wise DVDs away?
#47 by Caron on May 19, 2011 - 12:08 pm
Ken Clarke is one of my favourite Tories but he got this one very, very wrong. To suggest that there is a sort of rape where there is no violence is utterly ridiculous and he’s shown that he doesn’t understand the physical and psychological effects of rape.
I agree with you that it’s perfectly legitimate to have the debate about sentencing in response to a guilty plea. What’s wrong is to assume that date rape is somehow less traumatic. I think Clarke’s position is now compromised. How can we be confident that he understands the issues when he’s making the assumptions he is.
Can I suggest you all read this piece by Jennie where she looks at the physical and psychological effects of different rape scenarios. I think she is pretty much spot on. http://miss-s-b.dreamwidth.org/1152957.html
Clarke completely mucked up that interview yesterday. I think he’s acknowledge that himself. It’s very difficult in our political culture for him to come out and say “Yes, I made a hash of that. I’m really sorry. I will learn from this.” If he did, it would be taken as a sign of weakness and he’d be a dead man walking. It would be better if politicians had more freedom to muck up, apologise, sort things out and keep their jobs. We all make mistakes at work and we sort them out.
I still think that what Clarke said (and I have read the entire transcript) is serious enough to be a resignation matter. I don’t think he will go, though. I just hope to goodness he’s learned from the experience.
#48 by Gryff on May 19, 2011 - 2:35 pm
With respect, I think what your saying is undermined by your insistance here that not all rape involves violence. There are plenty of other forms of coercion, and/or lack of consent, and to imply that rape is defined by violence takes us backwards a few hundred years.
The piece you quote is interesting, but it accepts that there are some forms of rape which are more or less serious. There is a debate to be had at which those are, and by extension how that should be reflected in sentencing, but that debate cannot happen if you think someone who disagrees with you on the hierarchy should resign because they do not take it seriously.
#49 by Doug Daniel on May 19, 2011 - 3:18 pm
Actually, having read that link of Caron’s, it seems that person is actually suggesting the form of rape Ken Clarke is putting forward as the most serious case – i.e. a stranger randomly attacking and forcing themselves upon you – is in fact the least serious.
All of which merely highlights the fact that there really is a debate to be had here, especially as the girl in that link is looking at things purely from the point of view of the victim, which is perhaps neglecting to take into account that her idea of the least serious rape is probably the one that is most likely to be repeated by the rapist. That in itself brings into question what prison sentances for rapists are for: is it to give the victim a feeling of justice, or is it to keep dangerous criminials from reoffending?
#50 by Indy on May 19, 2011 - 5:24 pm
Well what is most “serious”?
A stranger rape or a husband who rapes his wife – or a father who rapes his daughter? There may be no physical coercion involved in that. The victim may either be so terrorised by her attacker that she copperates – or she may indeed have an emotional bond to her attacker which he abuses to commit the rape.
It’;s a complex area and a foolish politician who tries to disuinguish between types of rape on that basis.
#51 by Gryff on May 19, 2011 - 11:56 pm
I think that is exactly what I mean, most serious is debateable, but most reasonable people seam to accept that some rapes are more serious than others. Which is what people are castigating Clarke for.
#52 by Indy on May 20, 2011 - 9:37 am
That’s not what many people are castigating him for. I totally accept that a lot of the criticism is politically opportunistic. Nevertheless there are serious problems with what he said which can’t do anything but undermine trust in his abolity to do his job.
#53 by Gaz on May 19, 2011 - 12:22 pm
This is a dreadful mess. The media are spinning this for all it’s worth, each outlet providing their own edited highlights of the original Radio 5 show to justify their ever more frenzied outpourings.
Poor Ken did fluff his lines but I think that was entirely down to the unnecessary hectoring by Victoria Derbyshire in what is an obviously sensitive area. There was no need to take that approach – a calm and dignfied ‘Mr Clarke, it sounded to me that you think some rapes are not serious. Is that what you meant?’ would have been appropriate.
This type of journalism is ruining our democracy. Any decent person who aspires to be a politician will rightly run a mile if they think this type of thing could happen to them. We are left with brass-neckers and pompous arses who don’t give a shit.
The sooner journalists realise it is not their job to create the news the better.
For Labour, it provides yet another fig leaf to hide their absolute void when it comes to policy, vision and ideas. The way Ed Moribund (heard that for the first time last week and rather like it) milked this at PMQs when he knew David Cameron didn’t have a clue what he was talking about was a complete abdication of his responsibility to hold the government to account for its policies. Shame on him.
By the way, I understand (from someone far better qualified than me in these matters) that consensual sex involving an underage participant is defined as rape in England on the basis that the underage participant is unable to give consent from a legal standpoint. In Scotland, this is classifed as unlawful sex rather than rape.
If this is the case, it would seem that the definitions under Scots Law reflect ‘relative seriousness’ of such cases more effectively.
#54 by Jennifer Blair on May 19, 2011 - 12:24 pm
Agree with you on debate, but it wasn’t that he said some rape cases are more serious than others, but that he said ‘serious cases’ would get one type of treatment suggesting there were non-serious rape cases.
Different sentencing based on the circumstances prevents unjust decisions (though anonymity for rape defendants is a hideous idea), but it was his distinction between ‘proper’ rape cases and ‘serious’ rape cases against presumably non-serious ‘date rape’ that was appalling.
#55 by Jeff on May 19, 2011 - 12:29 pm
I really think we’re talking about semantics here Jennifer in what was, remember, a live interview. If Ken had said “more serious cases” then he would have been fine but you’re right that “serious cases” does, strictly speaking, mean that there must be non-serious cases out there. Do you really think that Ken Clarke believes that? After all the clarifications?
I simply can’t sign up to that I’m afraid.
Flipping your points the other way, do you believe that rape, no matter what the circumstances or situation, should always carry precisely the same sentence? I just can’t imagine judges could operate effectively with that lack of flexibility in the courtroom.
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#56 by Pete Ashton on May 19, 2011 - 12:43 pm
Small point, but I wish people wouldn’t blame “the Internet” for infantalising debate. There’s plenty of serious, sensible and in depth debate happening online (here, for example) including on Twitter. The problem, as ever, is people behaving like people. To blame Twitter is just lazy. I’d rephrase:
“Some say politics doesn’t ‘get’ the Internet; I simply say the Internet is often too immature for politics.”
as
“Some say politics doesn’t ‘get’ the people; I simply say the people are often too immature for politics.”
But other than that you’re 100% on the ball. Making the distinction between real politics and playing the Westminster game is essential.
#57 by Jeff on May 19, 2011 - 12:48 pm
Fair point Pete; can’t argue with that at all. Full disclosure – I heard a similar phrase somewhere and thought it was rather nifty. Less so now of course….
#58 by Pete Ashton on May 19, 2011 - 1:02 pm
Thanks. The great thing about Twitter is you can curate a community of likeminded folk as a compliment to those parts of you life where it’s not possible (work, geographical communities.) The danger is confusing that bubble you’ve created with the tool itself. I’d suspect your Twitter bubble has many people who play the political game in it, hence your distaste for how it appears to function.
Also worth remembering, the Internet is a mirror. Garbage in, garbage out. 😉
#59 by Stuart Winton on May 19, 2011 - 2:43 pm
Type your comment here
First, I did say *some* rape cases, Jeff, I wasn’t trying to generalise in relation to all rape cases.
As regards the implication that the victim might in some way be blameworthy, I meant that in relation to Clarke’s critics on this issue rather than regarding what he himself thought on the matter.
Thus his critics responded in a typically kneejerk manner on the basis not that they really consider some cases of rape less serious but because of the implication that to that extent *some* victims *could* be considered blameworthy, but I agree with you to the extent that that wasn’t the angle Ken Clarke was taking. He was approaching it more from the culpability of the perpetrator.
#60 by Steve Jones on May 19, 2011 - 3:19 pm
I don’t think the furore is anything to do with Twitter. Once a politician is ambushed like this and utters some words that cross a sacred boundary of identity politics, then all hell will break loose. It would be amazing if an opposition leader in the UK didn’t, given the state of politics, cease on such a slip-up as a way of scoring points, rather than discussing the issues.
There must surely be a word for politics conducted largely by the avoidance of sound-bit pratfalls.
#61 by Joe on May 19, 2011 - 7:06 pm
Initially I wondered if the statistics were aggregating all the various forms of what might be considered “rape” into one category but it appears the error was the BBC’s.
The Council of Circuit Judges source – a reponse to a consultation – wasn’t a statistic but an example calculation for “a sex offender who admits rape faces a starting point of 5 years in custodyâ€. Not an average as stated in the interview
The actual Average Custodial Sentence Length for rape offences (including Attempted Rape) in 2009 was 95.7 months (just under 8 years). ACSL excludes those on life sentences and indeterminate sentences for obvious reasons (about 20% of rape offenders). It also excludes offenders where the rape offence was not the principal offence dealt with – e.g. where murder or another offence with a longer sentence was involved.
#62 by Allan on May 19, 2011 - 7:39 pm
Hmmm, not really sure that I’m qualified to comment on the percieved “types” of rape – i always though that rape was rape, end of. So in that respect Clarke was wrong to seriously wrong to add any complexity to the issue. Had he been watching Law & Order SVU before appearing on 5Live (where there are regular eppisodes about underageers being charged for rape). In this respect i bow before the better wisdom of Indy, Caron & Una.
Thats not to say that there isn’t an issue surrounding Rape, as it does have the worst conviction rate of any of the Assault/GBH sets of offences. It suffers from the whole he said/she said syndrome, with the proof threshold set too high for many cases. Maybe the problem isn’t with the laws, but with the quality of law enforcers. All things that should be debated.
I also wouldn’t blame the furore on Twitter or on Victoria Derbyshire. There’s only one person to blame for that, an English Justice Secretary that began to look every inch the 70+ years that he is. Derbyshire , like it or not, was doing her job. Maybe she needs to refine her style, but an experienced campaigner should have handled the sutuation better than Clarke did yesterday. Funily enough, your point about Twitter reminded me of the point about 18 months ago when the Scottish media decided that bloggers were evil.
#63 by douglas clark on May 19, 2011 - 8:02 pm
Joe @ 52,
You are very brave for stating the obvious. That no-one condones rape and that it ought to attract a long custodial sentence is a given.
It is not at all clear to me that feminists appreciate that.
So let us be quite clear. Men and women both abhor rape and sentences reflect that.
I am not at all persuaded by the feminist argument. For it appears to have no substance nor bearing.
Let us be clear. Rape is wrong, rape is disgusting.
But.
It can be used for reasons that attract prejudice or racism.
What about ‘eye rape’?
Which was a law in the Dixie South, was it not?
We have to establish a balance between the rights of the victim and the rights of the accused. I have seen nothing here that suggests that that balance is even in the conscious thought of the women that comment here.
Their methodology seems to me to be:
Accuse!
Guilty!
Cut off their heads!
________________
Well, no.
I tend to believe in due process and not guilty until proven so.
How radical is that?
#64 by Una on May 20, 2011 - 12:36 am
I would suggest, Douglas, that this knee-jerk reaction to the points made by ‘women that comment here’ is equally unbalanced. We are not going to get anywhere when we gender stereotype.
I’m a feminist and a woman, yet I argued in support of Clarke as I think he was mis-read, and I notice Shami Chakrabarti (another unbalanced feminist type?) did so on QT too.
But there is genuine concern about a desensitised society with a diminished view of rape. Far from being without substance it’s based on evidence and experience. It’s therefore understandable that when a Justice Secretary uses the term ‘serious rape’ people are upset.
#65 by Doug Daniel on May 19, 2011 - 11:45 pm
Well, I can’t see him getting his jotters after that performance on Question Time. Not that it was a barnstormer or anything, but he was clearly genuinely sorry for how his point came across, and he also gave plenty of good reminders of why he’s one of the few (only?) good guys in the Tory party.
Probably helped that Shami Chakrabarti was pretty much on his side, whereas Jack Straw seemed to be on the side of Melanie Phillips. It always helps to be in the right company.
#66 by douglas clark on May 20, 2011 - 9:19 am
Una,
I was replying to Joe @ 50, not you.
But, you would say that wouldn’t you?
I made it as clear as day that I think rape is a very serious offence.
I do not think that any normal man would argue otherwise.
I do not think society is desensitised to rape.
I think all of society deplores it.
I know I do.
I, however, think that a charge of rape should meet exactly the same criteria of proof as a charge of murder.
It is this enthusiasm for lesser standards of proof, this mixing and matching of quite different issues that I deplore.
What is your view on a girl of fifteen making willing love to a guy of sixteen? Is that rape?
Apparently not.
Yet cases like that are dragged into the debate as though they were typically prosecuted or indeed the basis of the law.
They are not.
If you want to actually discuss this then let us take the case of two adults and remove the informed consent argument out of it.
Personally, I’d lock them up for a long, long time.
But only on the basis of the sort of evidence that is allowable in any other sort of trial.
I do not think you have a case ré
“Far from being without substance it’s based on evidence and experience.”
Not really.
There is a significant conviction rate – circa 58% – in rape cases that are brought to trial. The whole point about a trial is to decide whether an offence has taken place or not.
That is the whole point of a trial.
Just so’s you know, I have the utmost respect for Shami Chakrabarti. I most certainly do not see her as an unbalanced feminist type.
#67 by Indy on May 20, 2011 - 9:47 am
You sum up the problem with the prosecution of rape pretty well.
Because there are generally only two people involved, if you take gang rape type situations out of it. There are usually no witnesses and the physical evidence generally demonstrates only that sex took place – it can’t demonstrate whether both partners were willing.
So it is intrinsically quite difficult to prosecute rape cases on the basis of the sort of evidence that is allowable in many other trials.
That’s why there has been such attention paid to increasing the number of prosecutions leading to convictions.
Personally I am not sure if that is really the most effective way to reduce rape, I don’t know what the answer is though.
But certainly the kind of attitude which Ken Clarke expressed is not helpful.
#68 by Jennie on May 20, 2011 - 10:33 am
Doug @48: please read David Lisak’s research on this. Date rapists are overwhelmingly predatory serial offenders; they are not less likely to continue offending than any other category of rapist.
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