Does the law see ‘rape as rape’?


2:52 pm - May 18th 2011

by Unity    


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Are some rapes more serious than others? So far as the law is concerned, the answer is “Yes”.

What the law recognises is that the specific circumstances in which a rape take place may give rise to a number of aggravating factors and/or mitigating factors that must necessarily be taken into account when handing down a sentence following a successful conviction.

Use of extreme violence – i.e. beating the victim to a pulp in addition to raping them – multiple/repeat victimization and/or the existence of prior convictions for rape are treated as aggravating factors and result in a much longer sentence.

That doesn’t mean, of course, that a ‘date’ rape is any less a rape than another kind of rape – a rape is a rape is a rape.

But one of the reasons why some rape attract longer sentences than others stems from the fact that aggravating factors such as extreme violence or a history of serial offender suggests very strongly that a particular offender may by more likely to reoffend on release and present a significantly greater risk to the public for a much longer period of time than another offender, who may have been convicted for a first offence carried out with minimal physical violence.

This merely acknowledges that the interests of justice, which rightly includes considerations of punishment, public protection and rehabilitation, are best served by giving the judiciary a degree of latitude in sentencing in order to fit the sentence both to the crime and to the offender.

‘Date rape’
That’s pretty much the argument that Clarke should have made but, it has to be said, he appears to have botched it completely and panicked under fire even to the point of suggesting that consensual sexual intercourse between and 18 year old and 15 year old can be considered to be rape by virtue of the legal age of consent being 16.

This is a complete nonsense – although a 15 year old cannot consent to sexual intercourse in law, in practice courts have due regard that they may easily be capable of giving consent if their capacity to do so is evaluated in other objective terms, such as the Gillick test of competency. For that reason, if a charge is preferred at all in such a case, it will one of unlawful sexual intercourse not rape.

Only if an individual is under the age of 13 does the law regard them as being incapable of consenting to sexual activity is any sense, legal or otherwise, so a 13 yr old who had sexual intercourse with a 12 year old would be charged with rape even if the actual age difference between the two was a matter of only a few weeks or even days.

If, however, the 15 year old in Clarke’s badly drawn hypothetical example, does not consent to having sexual intercourse with the 18 year old then that is rape, regardless of whether you want to call it date rape or something else entirely, and the severity of the offence is a function of the presence or otherwise of aggravating factors, not the age or relative inexperience of the rapist.

So, let’s be absolutely clear here.

1. Some rapes are objectively and legally more serious than others.

2. Rape is rape, regardless of the presence or absence of aggravating factors.

3. There may well legitimate arguments to be made about sentencing policy, both in terms of whether the minimum and maximum sentences available to judges is either too short or too long and about whether judges place too much or too little weight on the presence or absence of aggravating and/or mitigating factors when determining sentences.

HOWEVER

4. Shouting ‘Rape is Rape’ at politicians in no sense addresses any the issues set out in point 3, unless the suggestion is that all rapes would attract the same draconian sentence, nor does it address other potential complications, e.g. the suggestion that some juries may be reluctant to convict if the feel that the minimum sentence for a particular offence, such as rape, is set at too severe a level and appears to the jury to be, subjectively, disproportionate to the facts put before them in court.

In short, Rape is anything but a simple or straightforward issue and cannot be reduced to a shouting match on a radio show, even if Ken Clarke has fucked up badly and made a number of indefensible remarks under fire.

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'Unity' is a regular contributor to Liberal Conspiracy. He also blogs at Ministry of Truth.
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Reader comments


I didn’t hear anyone on the original 5Live programme argue ‘rape is rape’. Ken Clarke made comments that dimished ‘date rape’ as a lesser crime, taking no account of other factors such as the degree of violence used to perpetrate a rape that the law rightly takes in to account.

All rape carries some degree of violence and the law recognises that. So should the justice secretary – he didn’t.

On the age of consent, the courts are already sensitive to relationships where the age is close and sex may actually have been fully consensual. But we have an age of consent because more widely our law recognises dimished capacity in minors – on a range of things including marriage, alcohol, driving and yes sex.

Ken Clarke’s comments were unacceptable and demonstrate and underlying sexism and misunderstanding of rape in his views. He’s got to go.

The sound clip Sunny linked to is 49 seconds long.

Clarke did not have all 49 seconds to speak on this “anything but a simple or straightforward issue”.

ISTM people are being rather unfair here.

So just to be absolutely clear: Clarke was plain wrong to suggest 1 – that the average sentence for rape might be lower because some people convicted of ‘rape’ are 17- or 18-year-old boys who have had sex with a consenting 14- or 15-year old girl, and 2 – that the law recognises cases of ‘rape’ in which sexual intercourse is unforced or consensual, as well as cases of rape ‘in the conversational sense’ (i.e. cases in which the victim is unwilling? (In fact, *all* rape cases (except those where the victim is under 13) necessarily involve an unwilling victim, because otherwise they’d be cases of ‘unlawful sex’ – yes?)

OK then, he should resign.

1. The reforms are aimed at all violent crimes.
2. The victim who called in went through a traumatic court case and the criminal changed his plea to guilty right at the end to get a reduced sentence.
3. He never said rape isn’t rape. He made the obvious point the law treats different types of rape in a different way. A 17 year old having consensual sex with a 15 year old is not the same as the kind of rape in the Night Stalker case. Not the same because the law treats them differently, as it always has.

Nothing he said was even slightly wrong, but I also find him too liberal on crime like you guys. Get him out.

‘Ken Clarke’s comments were unacceptable and demonstrate and underlying sexism and misunderstanding of rape in his views. He’s got to go.’

Bloody hell, to lie about what he said for political reasons to damage the government is so twisted its…

Anyway, you will probably get your way.

Try focusing instead on this (worrying) news report from March 2009:

The government estimates that as many as 95% of rapes are never reported to the police at all. Of the rapes that were reported from 2007 to 2008, only 6.5% resulted in a conviction, compared with 34% of criminal cases in general. The majority of convictions for rape resulted from an admission of guilt by the defendant, whereas less than one quarter of all those charged with rape were convicted following a successful trial.
http://www.guardian.co.uk/uk/2009/mar/13/rape-convictions-low

Why are juries so evidently reluctant to convict in rape cases?

7. Winston “roots” Chruchill

What else do you expect from a middle aged white male dominated Government other than a dismissal of the serious concerns regarding all types of sex without consent?

It’s like asking the mice to look after the cheese.

Why are juries so evidently reluctant to convict in rape cases?

Huh? The conviction:prosecution rate is similar to other crimes. What happens before we get to court is incredibly important and too often overlooked by commentators.

Read A gap or a chasm? Attrition in reported rape cases and Without Consent: A report on the joint review of the investigation and prosecution of rape offences.

A transcript of the clip Sunny linked to in an earlier thread:

Clarke: This is- this is being parodied by people who don’t know what rapists get and are claiming we are cutting the sentences.

Derbyshire: 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 are- date rapes can sometimes be very confusing [stuttering and Derbyshire speaks over him]

Derbyshire: So is date rape not as serious?

Clarke: Date rape can be as serious as the worst rapes but date rapes in my – 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.

10. Anon E Mouse

Sarah Hayward – No: all rape does not involve violence and your remark regarding underage sex refers to sentencing and not the crime. If one party is underage then it is rape. Your point is invalid and smacks of a typical New Labour response – knee jerk without any thought before hitting the keyboard.

I posted this elsewhere and it’s still valid;

I listened to that interview on Radio 5 Live and have to agree to a degree with Ken Clarke. We need the equivalent of 1st and 2nd degree murder for this terrible crime. And before all the Labour zombies like start shrieking in their shrill tones read my remarks please.

1. Anyone under 16 cannot legally consent to sex and it is classed as rape if a person at that age has consensual intercourse with a partner who may be only one day older. That is not the same as a woman being grabbed and gang raped in the bushes.

2. Date rape is not the same.

3. A wife refusing sex with her husband (obviously not a muslim woman who has no refusal rights and her husband has the right to beat her with a stick if he wishes) is not the same.

Rape is a horrendous crime and what angered me about Ken Clarke’s comments was the fact the sentences for this horrible crime are so low. Ken Clarke forgets that prison works. If a rapist is imprisoned he cannot commit more rapes.

Lock the bastards up and throw away the key I say and ignore Ken Clarke…

To be absolutely clear, what I’m responding to directly here are a number of garbled interpretations of Clarke’s comments that have flying around on twitter which expressed outrage at the notion that some rapes are more serious than others.

That does not appear to me to be what he said nor it is the cause of the current shit storm – that stem from the remarks which suggest that he may worngly regard date rape as being something less than a ‘proper’ rape, i.e. as a lesser offence, rather than as a rape offence in which the question of severity arises only in sentencing and only then on an objective consideration of the facts of the case.

That’s just flat out wrong, an error compounded by his apparent inability to understand the law on statutory rape, which is particular worrying as by modern standards the Sexual Offiences Act 2003 is a model of clarity.

Clarke’s comments were, and are, indefensible and, to be honest, all the more remarkable for having been uttered by an experienced politician who would not normally be expected to panic under fire.

However, scalping Clarke in no sense tackles the policy issue here, which is an altogether more complex matter in need of serious debate.

@8: “A gap or a chasm? Attrition in reported rape cases and Without Consent: A report on the joint review of the investigation and prosecution of rape offences.”

That Home Office report was published in 2005 whereas my quote @6 was from the Guardian in 2009. Not much changed in between – the conviction rate for cases of reported rape has remained low as compared with other criminal cases. It is timely and makes sense to ask what we should attempt to do about that fact?

There are patently obvious differences in the degree or severity of rape cases which do make it to trial and that is one likely reason why juries are so reluctant to convict.

@ Anon E Mouse

1. Anyone under 16 cannot legally consent to sex and it is classed as rape if a person at that age has consensual intercourse with a partner who may be only one day older.

Completely wrong. Don Not Pass Go. Do not expect anything you have to say on this subject to be taken seriously here until you’ve understood the difference between rape, statutory rape and underage consensual sexual intercourse.

Jeebus – you explain it in the main article and someone still has to repeat the same bullcrap.

Good to see LC cross posting this piece. Rape is rape and no means no. Full stop.

Bob,

That Home Office report was published in 2005 whereas my quote @6 was from the Guardian in 2009. Not much changed in between – the conviction rate for cases of reported rape has remained low as compared with other criminal cases. It is timely and makes sense to ask what we should attempt to do about that fact?

you appear to have ignored or missed my point.

The 6.5% figure is the convictions : allegations rate. It is not the rate of convictions : cases taken to court.

The convictions : cases taken to court is rather higher at over 50%. It is not evident then that “juries [are] so reluctant to convict in rape cases”.

See pages 42-43 of the Stern Review of Rape Reportiing (from 2010) or this if you can’t be bothered.

@UKL

One note of caution on juries and the conviction rate in cases that go to court – that figure includes cases in which a guilty plea is entered by the defendant either before or during the trial.

In fully contested cases which conclude with the jury verdict, the conviction rate is a fair bit lower than 50%. IIRC its generally around 40% in England but dips as low as 30-33% in Scotland.

To be honest, CJS stats on rape are a fucking minefield from start to finish and desperately need a systematic review of reporting and recording standards.

Unity,

One note of caution on juries and the conviction rate in cases that go to court – that figure includes cases in which a guilty plea is entered by the defendant either before or during the trial.

Yes, I should have made that clear – apologies.

so a 13 yr old who had sexual intercourse with a 12 year old would be charged with rape even if the actual age difference between the two was a matter of only a few weeks or even days.

Could be charged, yes, not necessarily ‘would’. I think if the age difference was that small, though, the CPS might feel it didn’t pass the public interest test to actually charge and prosecute.

who may have been convicted for a first offence carried out with minimal physical violence.

If it was actually their first offence then they would be really unusual. Weinrott and Saylor found that convicted rapists had generally committed on average ten times as many rapes as they were convicted of. (Looking at the methodology, it seems unlikely to be an overestimate)

Similarly studies have found that most repeat rapists (and most rapists are repeat rapists) use “instrumental” rather than “gratuitous” violence. (e.g. Lisak and Miller)

“first conviction with minimal physical violence” is therefore not something I would have any confidence in as a measure of the possibility of re-offending and future danger to the public.

This I think is part of the problem – yes, some rapists are more dangerous than others, but it’s not necessarily the ones you might expect. Serial predator acquaintance rapists are commonplace and commit the majority of rapes – but they’re also the hardest to prosecute and the most likely to get away with not being “a rapist as you and I would use the term in conversation” (speak for yourself, Clarke) and so get a light sentence from the judge.

19. Flowerpower

Sarah Hayward @ 1

Ken Clarke made comments that diminished ‘date rape’ as a lesser crime, taking no account of other factors such as the degree of violence used to perpetrate a rape that the law rightly takes in to account.

No, he didn’t. On the contrary he very clearly talked about how the category “date rape” could cover a broad range of circumstances including terrifying violence. You need to listen again.

Unity @ 11

Clarke’s comments were, and are, indefensible

Could you be specific about which ones? It seemed to me that Clarke was saying much the same as you did in the OP. No doubt the odd phrase taken out of context might be used dishonestly to discredit him, but the burden of what he was saying, taken in the round, roughly what you’re saying. If not, it would be helpful to know which were the ‘indefensibles’.

Anon E Mouse –

“1. Anyone under 16 cannot legally consent to sex and it is classed as rape if a person at that age has consensual intercourse with a partner who may be only one day older.”

No it’s not. It’s classed as unlawful sex. See Unity’s comment @ 13 (or his original post, for that matter).

“That is not the same as a woman being grabbed and gang raped in the bushes.”

No – hence the latter being classed as a different crime, ‘rape’.

“2. Date rape is not the same.

3. A wife refusing sex with her husband (obviously not a muslim woman who has no refusal rights and her husband has the right to beat her with a stick if he wishes) is not the same.”

It’s trivially true that being raped by someone you know is not ‘the same’ as being raped by someone you don’t. But if you mean to imply that it’s any less serious, I think you’re plain wrong. If anything I imagine it might be more traumatic, in some ways, to be raped by someone you know and trust than by a stranger.

@Sarah Hayward:

1. the interviewer did challenge him, saying “rape is rape”.
“When BBC interviewer Victoria Derbyshire interrupted to say “Rape is rape, with respect” Mr Clarke replied: “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.” (http://www.bbc.co.uk/news/uk-13436429).
He got it wrong – what he’s talking about is not called “rape” under the law, but “unlawful sexual intercourse”, but that’s beside the point.

2. He did *not* trivialise date rape. He used date rape as an example for cases that can vary so much one from the other that they *can* attract a lighter sentence (and therefore skew the rape sentence length statistics, which is *really* what he was talking about).

He said explicitly “Date rape can be as serious as the worst rapes”.

He was not expressing ANY views about what he thinks about rape of any kind, just explaining sentencing practices (as he sees them) and why he thinks the figure of an average rape sentence of 5 years is misleading.

I happen to think his arguments are invalid because he got his facts wrong:
– Unlawful sexual intercourse is probably not in the sentencing statistics that he attacked.
– The caller’s story clearly showed that his hypothesis that violent rapists get “much longer” prison sentences than 5 years is untenable.

I think his policy proposal is wrong and he’s deeply out of touch with what I believe victims of rape want and need – which is their attacker locked away securely for as long as possible.
And he did screw this interview up by getting his facts disastrously wrong.

But I am dismayed by the knee-jerk reactions in the press and on the internet, and the blatant misrepresentation of what Clarke actually said.

Instead of attacking him on the FACTS of his argument he is being slaughtered for describing sentencing practices and trying to use nuanced language.

Bonkers IMO.

@15: “The convictions : cases taken to court is rather higher at over 50%. It is not evident then that “juries [are] so reluctant to convict in rape cases. See pages 42-43 of the Stern Review of Rape Reportiing (from 2010)”

Thanks for that correction – I wasn’t aware of the Stern Review. But we still need to be concerned about the low conviction rate for rape of the cases recorded by the police – which is reportedly lower than for other criminal cases.

It would seem not much has changed since the Home Office Report of 2005 on: A Gap or Chasm. Regardless of Clarke, there is a real issue and I can’t help feeling that much of the current public debate is intended to generate heat rather than shed light on the policy options, although I’m very ready to admit that I know little about this subject.

Looks like Ken Clarke is still digging that hole. From the BBC site:

“In a separate interview with Sky News, Mr Clarke denied he was cutting sentences. He said the proposal applied to every single criminal offence, adding: “Rape has been singled out as an example mainly to add a bit of sexual excitement to the headlines.””

Publicly suggesting that mentioning ‘rape’ in your headline makes it more sexually exciting – a bit like mentioning ‘boobs’ or ‘three-in-a-bed romps’ – strikes me as a teensy bit misguided.

24. Anon E Mouse

G.O. – My point is that is is more nuanced than a “Rape is Rape” comment.

I did not suggest one form of rape was less serious than another, just that it was different and the author describes a charge of unlawful sexual intercourse not rape but that is the charge that is preferred – a choice of the prosecutor. I only illustrated the age difference – which could be 60 years and effectively still not rape.

I would further suggest that with a very similar age between a couple, charges would be unlikely to be brought.

Regarding rape within a marriage that is certainly not the same as being grabbed by a stranger – yes it may leave mental issues as you describe but we have to trust in judges to make the right decisions here.

I also finished saying I want much much longer sentences for the abhorrent act of rape and that is my complaint about Ken Clarke.

25. sean4thedefence

It’s not classed as “unlawful sex”, This was abolished by the 2003 sexual offences act. Now, rape means rape, even if there is a one day age difference between partners and everyone is consenting. In that respect, Ken Clarke was right.

As for “could be prosecuted” but not neccessarily “would be prosecuted”, the febrile atmosphere of “not enough convictions for this serious crime” means that the CPS are hardly likely to miss a shot at the open goal that is a 16 year old admitting having sex with his or her 15 year old partner, are they? Makes the stats look better..

All crimes have degreas. A burglary where high value goods and photographs of deceased relatives are stolen is more serious than the theft of a lawnmower from a garden shed, for example. I hate to miss an obvious chance to have a go at the Tories, but this is a real peace of non story bullshit. Arguing that there is no qualitative difference between a knife point attack in someone’s own home and a date rape is stupid, even if the difference is between an 8 and a 15 year sentence. Assuming that by saying that there is a diifference between the two in any way means that either are less serious is demeaning.

Actually the point Clarke was trying (badly) to make was that the suggestion by some Labour frontbenchers that the proposed reforms would lead to all rapists leaving prison after just 15 months was false as serious and violent rapes regularly got far longer sentences than was the basis of the “five year sentence, halved to 2.5 years under the new sentencing and then halved again for good behaviour to make 15 months” argument that Labour shadow ministers were making.

I’d say that this is a good piece on the whole debacle:

http://richardbaum.mycouncillor.org.uk/2011/05/18/labour-response-to-rape-comments-is-a-tragic-waste-of-opportunity-for-debate/

I think that @3 has summed up pretty well what Clarke meant to say. The fact that Labour are now calling for him to be sacked just goes to show that we are incapable of having a serious debate about sentencing for rape in this country.

@23 I think the word he might have been looking for was “emotive”.

25/sean4thedefence: 16 and 15 is legal if both consent (one needs to be 18 to commit a crime under section 9 of the 2003 act); 18 and 15, if both consent, would be “sexual activity with a child” (S9), not “rape” or similar (S1-4). (If the 15-year old doesn’t consent it would be both; if the 18-year old doesn’t consent it would be rape only)

30. Chaise Guevara

@ George W Potter

“I think that @3 has summed up pretty well what Clarke meant to say. The fact that Labour are now calling for him to be sacked just goes to show that we are incapable of having a serious debate about sentencing for rape in this country.”

Agreed. I didn’t hear the broadcast, so I don’t know how it came across on radio, but from what I’ve read it seems that to believe he was trivialising rape you’d have to want to believe that. It’s also obvious that the interviewer was trying to push him into saying something controversial or compromising. Not argument with that, that’s what interviewers do, but a lot of people seem to be deliberately failing to take into account that he was in a conversation, not reading a carefully prepared speech.

Whether or not the proposed law trivialises rape and other crimes is, of course, a totally different matter, and as many commenters have said, that’s what we should be having the debate about.

Is there some confusion about what “date rape” means, by the way? The article seems to say it’s the same thing as statutory rape. I always assumed it meant someone raping someone else when out on a date with them – which could mean anything from violent assault to sleeping with someone who’s too drunk to consent. If people are using the word differently it could go a long way to explaining what’s going on here.

I think the point that is in danger of getting lost here is this:

Assuming Unity and cim are right (and sean4thedefence is wrong) – i.e. consensual sex between an older and a younger teenager is not classed as ‘rape’ – Ken Clarke was quite wrong to imply that there are some types of ‘rape’ – such as ‘date rape’ – which are not ‘serious’ or ‘forcible’, which are not cases of rape ‘in the ordinary conversational sense’, and which do not involve an ‘unwilling’ victim.

I don’t think anyone disputes that some cases of rape might be more ‘serious’ than others in the sense that they are more violent or prolonged, or involve more attackers, or whatever. But to imply that some rape victims are rape victims in name only – because they were not in fact unwilling and so were not raped ‘in the ordinary conversational sense’ – is ignorant and offensive in the extreme.

Clarke was busking it and as he sometimes does ended up with hush puppy in mouth. To suggest as Milliband did that his required the removal of the government’s least objectionable member is ridiculous. It would be nice to see PMQs used for something other than beating your oppo over the head with embarrassing soundbites.

@30 I also assumed date-rape involved rape where the victim was not in a position to give or refuse consent. Such as being asleep/pissed/drugged-up.
Course that might be my lazy assumption from “date-rape drugs”.

34. Chaise Guevara

@ 31 G.O.

“I don’t think anyone disputes that some cases of rape might be more ‘serious’ than others in the sense that they are more violent or prolonged, or involve more attackers, or whatever. But to imply that some rape victims are rape victims in name only – because they were not in fact unwilling and so were not raped ‘in the ordinary conversational sense’ – is ignorant and offensive in the extreme.”

To be honest, that’s semantic. If “rape” covers sex with someone under the age of consent, they’re rape victims. If it doesn’t, they’re not, they’re victims of something else instead. I can see the possibility of a lot of fruitless arguments (along the lines of: “You’re being callous!” “You’re being irrational!”) between two people who simply apply the terms differently.

35. Chaise Guevara

@ 33 Cylux

Good point RE date-rape drugs. Which makes it not as bad as rape with violence, but still very much rape (and pre-meditated at that).

If we don’t know what Clarke meant when he said “date rape”, I kinda feel we don’t have much to go on.

Why do we keep hammering Clarke in this thread while neglecting the substantive issues:

– how to improve the conviction rate for cases of recorded rape?

– what to do about sentencing for rape on conviction when Britain already has one of the largest per capita prison populations in western Europe and there are continuing budgetary pressures to reduce prison costs?

– what to do about the likelihood of reoffending by rapists, perhaps with escalating violence?

37. Chaise Guevara

@ Bob

…Any ideas? Because those are good questions, they need answers. My answer to your second question would be to improve standards of living and education in the hope that that would lead to fewer petty criminals, and hence more prison room for rapists. But that would take a while.

@37: “…Any ideas?”

Frankly, I’ve little idea because rape, as well as crime and policing generally, aren’t issues I know much about. I suspect Clarke was just kite flying when he said the wrong things and unintentionally trod on sensitive toes – to mix up the metaphors. But underneath all that, there are important public policy issues at stake which are going by default and that is sad.

What with so much rape news in the media, as well as Bin Liner and the scale of crimes against humanity in the Middle East, many important public policy issues are getting overlooked. For example: David Cameron threatens banks over ‘disappointing’ lending

David Cameron outlines the measures the Government can take against the banking sector if they do not fulfill their part of the Project Merlin deal.
http://www.telegraph.co.uk/finance/8519436/David-Cameron-threatens-banks-over-disappointing-lending.html

We are looking to consumers and businesses to spend more to make up for the cuts in public spending and increased bank lending is part of that equation.

G.O.

Ken Clarke was quite wrong to imply that there are some types of ‘rape’ – such as ‘date rape’ – which are not ‘serious’ or ‘forcible’, … to imply that some rape victims are rape victims in name only – because they were not in fact unwilling and so were not raped ‘in the ordinary conversational sense’ – is ignorant and offensive in the extreme.

ISTM Clarke did not “imply” date rape isn’t serious, as he explicitly said it “can be as serious as the worst rapes”. It is a meaning you’ve inferred, and ISTM wrongly so. .

Bob,

It would seem not much has changed since the Home Office Report of 2005 on: A Gap or Chasm. Regardless of Clarke, there is a real issue and I can’t help feeling that much of the current public debate is intended to generate heat rather than shed light on the policy options, although I’m very ready to admit that I know little about this subject.

Stern claimed that there have been many improvements since Without Consent and the-then Government’s Rape Action Plan but more needed to be done. Things are improving but slowly and as more allegations are being reported the convictions : allegations rate is decreasing. (another example of the importance of context)

Stern also collected some disheartening statistics about the public such as “26–29 per cent (male and female) feel that a woman is at least partially responsible for her own rape if she had been drunk or was behaving in a flirtatious manner (2005)”, “64 per cent of people feel that a person should take responsibility for being raped if they drink to excess/blackout (2010)” (box 5, page 51).

(Incidentally alcohol is estimated to be a factor in about a third of rapes, IIRC. And no, I am not blaming the victim – a person cannot consent if she is drunk.)

So there is more to be done throughout the criminal justice system but society needs to change as well.

It’s irritating when the focus is not on the ‘small gaps’ that need to be bridged, as Regan and Kelly put it, or the big job of changing that 64% of society, but headline-grabbing nonsense (tabloid-baiting proposals and he-said-this-no-he-didn’t-say-that rubbish).

@40: “So there is more to be done throughout the criminal justice system but society needs to change as well.”

A cabinet – any cabinet – presented with a policy analysis paper in which engineering “societal changes” features as one of the prescribed policy options is liable to be greeted with a predictable response.

Of course, for all that, the social diagnosis could still be correct. FWIW Britain comes out close to the top in this international league table of the incidence of male-to-female rape – with due regard for all the caveats about the hazards of making international comparisons when legal definitions of rape vary between countries:
http://en.wikipedia.org/wiki/Rape_statistics

But then we also come out somewhere near the top of international league tables in the national incidence of violent crime, teen pregnancies and binge drinking.

I suspect these are all correlated.

Btw it’s almost always a good idea to make comparisons with what happens in other west European countries IMO.

42. So Much For Subtlety

23. G.O. – “Publicly suggesting that mentioning ‘rape’ in your headline makes it more sexually exciting – a bit like mentioning ‘boobs’ or ‘three-in-a-bed romps’ – strikes me as a teensy bit misguided.”

But probably true. Talking about rape gets all sorts of audiences interested.

And to be honest we would not be here if he said those things about GBH.

@23 Actually SMFS’s comment just reminded me, didn’t the now-departed Daily Sport do exactly that when reporting rape cases? Or at least rake over the details in an almost pornographic fashion.

44. Matt Wardman

Been busy.

Congratulations to all on a conversation which is illuminating.

Bob,

It would seem not much has changed since the Home Office Report of 2005 on: A Gap or Chasm. Regardless of Clarke, there is a real issue and I can’t help feeling that much of the current public debate is intended to generate heat rather than shed light on the policy options, although I’m very ready to admit that I know little about this subject.

Things have improved somewhat since the publicaton of that report but it has to recognised that this an issue that, by its very nature, is not amenable to quick fix solutions or eye catching initiatives.

If you seriously want to improve conviction rates for rape with making unacceptable compromises on justice then you really have no option but to play the long game and invest in better training for investigators and prosecutors, specialist forensic science services and enhanced support for victims.

That inevitably takes time and, equally inevitably, also means that there will be a significant lead-time between putting in the investment and seeing visible signs of improvement in the attrition and conviction rates for the offence because you’re trying a build a better infrastucture rather than relying on tinkering with the law.

The honest view to take here is that there are no quick fixes and that what is required from politicians and the criminal justice system is a clear commitment to the long haul.

There is still much to do, particularly on the prevention side, but some valuable progress has been made behind the scenes even if this is not yet visible on the surface.

@ Chaise 34

In one sense, it *is* semantic. But 1 – surely the Justice Secretary would be well advised to use words in their accepted legal sense (explaining that if necessary) and 2 – words matter. If you were a rape victim who’d been through hell to see your attacker convicted, would you like to think there were still people around thinking “Well OK then, he ‘raped’ her, but maybe it wasn’t a *serious* rape because maybe she actually consented”? Surely not. You’d want people to understand that you were *raped*.

In another sense, it’s certainly *not* semantic. It’s either true or false that the figures Ken Clarke was talking about, concerning the average sentence for rape, included cases of 17-year-olds having consensual sex with 15-year-olds (as he claimed).

@ ukliberty 39

“ISTM Clarke did not “imply” date rape isn’t serious, as he explicitly said it “can be as serious as the worst rapes”.”

Right you are. What I should have said was

“Ken Clarke was quite wrong to imply that there are some types of ‘rape’ – such as ‘date rape’ – which are *sometimes* not ‘serious’ or ‘forcible’, which are *sometimes* not cases of rape ‘in the ordinary conversational sense’, and which *sometimes* do not involve an ‘unwilling’ victim.”

I think my point still stands, though. He certainly distinguished between ‘serious’, ‘forcible’ rapes involving an ‘unwilling’ victim and other sorts of rape; and ‘date rape’ was the example he gave (presumably of a type of rape that might sometimes not be ‘serious’ or ‘forcible’ or involve an ‘unwilling victim’).

35/Chaise: Which makes it not as bad as rape with violence

I know what you meant, but:
– rape is violence by definition
– intentionally poisoning someone is generally considered violence

Personally, I’d regard someone who’s gone to the trouble to get the poison, pick out their intended victim, etc. etc. as far more dangerous than someone who uses obvious physical force. Much more premeditation, much more likelihood that they’ve raped before and will again, much less straightforward to convict or even detect. Giving them a reduced sentence if you do catch them on the grounds that their most recent victim had fewer long-lasting physical injuries seems backwards.

As I said at 18, part of the problem is that our sentencing policy represents lazy stereotypes about rapists rather than what we actually know from research about how the most prolific rapists tend to think and behave.

41/Bob B: Given that – in the UK – unrecorded rapes are the vast majority, I don’t believe any of the figures in that table are worth anything. If you’d tracked the UK rate over time based on those figures you’d conclude that rape has become considerably more prevalent since the 1970s. Not really the case – what’s happened is that there have been efforts made to make the justice system more effective and less hostile to victims, so that more victims feel that there’s some use to reporting.

Even the BCS isn’t particularly useful for determining how many rapes occur in the UK (as opposed to how many people are raped) because it doesn’t try to track how many times in the last twelve months someone was a victim of the same crime. (It also excludes people under 16 or over 59) It can be used to set a very conservative lower bound, and there are many advantages to a consistent methodology, but meaningful international comparisons are impossible.

45/Unity: I’ve been extremely disappointed, actually, by the lack of work done by successive governments on prevention. Work on the justice system, work on providing support for victims – yes – that’s happening. Slowly, and three steps forwards/two steps back a lot of the time, but there are improvements being made. But on prevention no-one senior seems to even admit in Parliament to the scale of the task.

46/G.O.: Agreed on all counts.

G.O.

Right you are. What I should have said was

“Ken Clarke was quite wrong to imply that there are some types of ‘rape’ – such as ‘date rape’ – which are *sometimes* not ‘serious’ or ‘forcible’, which are *sometimes* not cases of rape ‘in the ordinary conversational sense’, and which *sometimes* do not involve an ‘unwilling’ victim.”

I think my point still stands, though. He certainly distinguished between ‘serious’, ‘forcible’ rapes involving an ‘unwilling’ victim and other sorts of rape; and ‘date rape’ was the example he gave (presumably of a type of rape that might sometimes not be ‘serious’ or ‘forcible’ or involve an ‘unwilling victim’).

In terms of sentencing there are are aggravating and mitigating factors. For example, one aggravating factor is that the “Offender ejaculated or caused victim to ejaculate”; another aggravating factor is “Use of drugs, alcohol or other substance to facilitate the offence”.

Suppose we have two identical scenarios A and B but for an aggravating factor in B. One could say that A is serious and B is even more serious. This means that A is less serious than B, doesn’t it? But it doesn’t mean that A is not serious. But the latter is what you are saying Clarke “implied”.

Unity claimed in the OP that “Some rapes are objectively and legally more serious than others”. We could say that “Unity said some rapes are less serious than others, he should resign”. But that is a rather unfair characterisation of what was said! And it certainly does not mean that Unity “implied” some rapes are not serious at all.

49. Chaise Guevara

@ 46 G.O.

Haven’t people been saying that he is using the word in its legal sense, because an 18-year-old who sleeps with a 15-year-old is guilty of a different crime (sex with a minor or something)? If that’s the case, then it’s a bit unreasonable to argue that he should use the word inaccurately because you feel it’s more emotive – people would accuse him of not knowing how to do his job.

@cim

Even the BCS isn’t particularly useful for determining how many rapes occur in the UK (as opposed to how many people are raped) because it doesn’t try to track how many times in the last twelve months someone was a victim of the same crime. (It also excludes people under 16 or over 59) It can be used to set a very conservative lower bound, and there are many advantages to a consistent methodology, but meaningful international comparisons are impossible.

BCS is a little more useful than you might think, as long as you’re prepared to put a bit of work into the data and draw on other available sources to extrapolate estimated headcounts from the prevalence data it provides.

The best way to illustrate what can be done, with a little effort, is to show you.

A few months back I pulled together a short compendium of statistics using BCS and one or two other sources in an effort to put some credible statistics into play, including estimates for the prevalence of repeat victimisation and victimisation of under 16s – see http://www.ministryoftruth.me.uk/2010/11/29/rape-statistics-what-can-we-rely-on/

Some of the figures are necessarily ballpark estimates, but I did a lot of cross checking against published research and I’m pretty confident that I am least in the right ballpark, which is more than can said for some of the ‘statistics’ that are commonly cited in relation to rape.

As I turned out, I also succeed in standing up the headline figure given by the Alberti Taskforce, which some had claimed was an over-estimate, and created a bit of extra work for Coventry Rape Crisis, who were launching a new initiative the day after I posted the stats and ended up hurriedly re-writing some their publicity materials to include the figures on the scale of repeat victimisation..

51. Chaise Guevara

@ 47 cim

“I know what you meant, but:
– rape is violence by definition
– intentionally poisoning someone is generally considered violence”

Agreed, assuming your first point is about non-consent. Bad phrasing on my part.

“Personally, I’d regard someone who’s gone to the trouble to get the poison, pick out their intended victim, etc. etc. as far more dangerous than someone who uses obvious physical force. Much more premeditation, much more likelihood that they’ve raped before and will again, much less straightforward to convict or even detect. ”

Agreed again, and I considered clarifying this when I posted. I was saying that rape with GBH is worse because of the direct effect on the victim. I agree drug rape seems more likely to be premeditated, and the perp is probably more likely to convince themselves that their crimes “don’t count as rape”.

@47: “Given that – in the UK – unrecorded rapes are the vast majority, I don’t believe any of the figures in that table are worth anything. ”

The figures banded around for unrecorded rape in Britain are necessarily estimates and sensitive to what is considered could be rape in the absence of trials where “consent” is a regular defence. I don’t have figures but I suspect in the majority of cases which go to trial, the victim had prior acquaintance with the accused. Stranger rape is (fortunately) in a minority of cases.

Even granted that that comparative international figures for rape are unreliable, there are other data reporting that Britain features near the top in international league tables for violent crime, teen pregnancies and binge drinking. It seems likely those would correlate with the incidence of rape.

If it were true that the incidence of rape in Britain is low compared with peer group countries – which I doubt – there would be less cause for believing that societal changes could bring about a reduction in the incidence of rape.

53. Shatterface

If Labour had sacked Jack Straw for his comments on Pakistani men and rape they might not look like opportunistic assholes calling for Clarke’s dismissal.

Clarke’s not an unreconstructed reactionary and his arguments for reducing sentences for those who admit rape are being used as a lever by those who want harsher sentences for all crimes.

Labour should be utterly ashamed of their draconian approach to crime to the extent that a Tory Secretary of State can be branded soft on crime for merely being pragmatic.

ukliberty:

I agree that some rapes are more serious than others in the eyes of the law (and no doubt rightly so).

Where we disagree is over the question of whether Ken Clarke merely implied that:

(1) some rapes are less serious than others in the sense that aggravating factors are absent, or mitigating factors are present – but all rapes are serious crimes involving violence against unwilling victims

(2) some rapes are less serious than others in the sense that they are not really ‘rapes’ at all as the term is usually understood, because they are not ‘forcible’ or ‘violent’ and the victim is not ‘unwilling’.

And I think (2) comes a lot closer to the mark when you look at what he actually said:

“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.”

“rape in the ordinary conversational sense. Some man has forcefully, with a bit of violence…”

“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”

Suggesting that some rapes are less serious than others is one thing; suggesting that some rapes are not really rapes at all ‘in the ordinary conversational sense’ is another.

@ Chaise 49:

“Haven’t people been saying that he is using the word in its legal sense, because an 18-year-old who sleeps with a 15-year-old is guilty of a different crime (sex with a minor or something)? If that’s the case, then it’s a bit unreasonable to argue that he should use the word inaccurately because you feel it’s more emotive – people would accuse him of not knowing how to do his job.”

I don’t really follow this. I’m arguing that he should have used the word accurately, in its legal sense. He clearly *wasn’t* using the word in its legal sense, because he was trying to distinguish between the ‘ordinary conversational sense’ in which he and the interviewer were using the term (to refer to serious, violent crimes involving an unwilling victim), and a legal sense in which (supposedly) ‘rape’ includes cases in which the victim is not unwilling and violence is not involved (e.g. teenagers having consensual sex).

56. Chaise Guevara

@ 55 G.O.

Confused. I thought you said it was offensive not to refer to sex with a minor as “rape”. My point was that apparently calling that rape would be legally inaccurate. I’m probably just misreading, but you seem to be demanding that he use it both accurately and inaccurately.

Ken Clarke is a very rare animal, he is a decent compassionate conservative and is also an excellent moderating influence the greater conservative pack hence why is many try to marginalize him. There is no doubt he fucked up but it is a bigger mistake to try and scalp him.

I can’t understand how anyone could possibly read the full transcript of what Clarke said and try to minimise the awfulness of it or try to claim that he really “meant” to say something else. It wasn’t an isolated slip-up – he consistently argued that “date rape” wasn’t “serious” rape – not rape “as you and I would use the term in conversation” (trying to make the interviewer complicit in his odious views).

[TW http://www.bbc.co.uk/news/uk-politics-13444770%5D

G.O.

A point I think you may be missing here is Clarke’s repeated references to the use of force, i.e. ‘forcible rape’, ‘forcefully’, ‘forcibly having sex’.

Unfortunate for Ken, that’s a very loaded term iwth the wider context of what, for want of a better term, the rape debate.

In the UK, the legal definition of rape is predicated solely on the issue of consent. The or otherwise of force in not relevant to the legal construction of the offence such that sex without consent in any circumstances is rape.

Outside the UK, therre are a number of countries, including Sweden and some parts of the US, where the legal construction of the offence is rape is predicated on the use of force and not the absence of consent. As a result, offences commited in those jurisdictions which would, under UK law, be treated as rape, are commonly prosecuted as lesser offences, i.e. as a sexual assault.

In the worst examples of these types of rape statute, it can be almost impossible to secure a conviction for rape without producing concrete evidence of violence to the extent that a woman who submits to her assailant without fighting back, for fear of being violently assaulted in addition to being raped, has little or no prospect of seeing their assailant convicted of rape.

This is actually something that was discussed here at considerable length while trying to unpick the Assange extradiction case.

That’s where, in objective terms, the issue of ‘rape-rape’ and ‘other rape’ enters the debate and, by the same token, that’s why Clarke dug himself into a hole.

The term ‘forcible rape’ in this arena is both archaic and alludes to the practice of setting out the definition of rape in statute in terms of the use of force and not the absence of consent.

That may well not be how Clarke intended his comments to be taken, but that’s what came out of his mouth and that’s why he’s getting a very public kicking over his remarks.

Andy G,

It wasn’t an isolated slip-up – he consistently argued that “date rape” wasn’t “serious” rape – not rape “as you and I would use the term in conversation” (trying to make the interviewer complicit in his odious views).

[TW http://www.bbc.co.uk/news/uk-politics-13444770

I can see how one could draw that meaning from Clarke’s words had he not explicitly said “Date rape can be as serious as the worst rapes” . But he did.

@60 Yes, you’re right, the fact that he eventually graciously acknowledges that date rape can sometimes be serious entirely negates the fact that he’s spent the rest of the interview saying that date rapes aren’t as “serious” or what most people mean by “rape”, and suggesting that there’s a blurry line as to whether those women were ‘unwilling’ or not.

Oh no wait, it doesn’t.

Whatever he said or didn’t say, that way of conducting politics and political interviews is wrong I think. Following him down the stairs with a camera and microphone firing questions at him is not the way to do it.
And Ed Milliband showed himself to be a PC toad by making a mountain out of the molehill and saying that Clark should resign.
Far better to ask Clark to think about it overnight and get back to him in a less shrill manner the next day.

63. Robin Levett

@Unity #13:

In answer to Anon E Mouse who said:

“1. Anyone under 16 cannot legally consent to sex and it is classed as rape if a person at that age has consensual intercourse with a partner who may be only one day older.”

you said:

“Completely wrong. Don Not Pass Go. Do not expect anything you have to say on this subject to be taken seriously here until you’ve understood the difference between rape, statutory rape and underage consensual sexual intercourse.”

Firstly, there is in England and Wales no such animal as “statutory rape”. Nor, technically one of “underage consensual sexual intercourse” – .

Secondly, so far as the law is concerned, nor is there any such thing as “underage consensual sexual intercourse” (although, to be fair, you may not have meant to use that as a term of art). There is an offence of unlawful sexual activity with a child (s9 of the Act), which would usually (CPS guidelines practially mandate it) be charged where the girl (13-15) in fact consented to the sex, but since she legally cannot consent all the ingredients of the section 1 offence – rape are present.

Anon was entirely correct in what s/he said.

Again, since the sentencing guidelines provide that the starting point for a single offence of rape by a single offender is 5 years, and since the latest MoJ statistics say that the average length of imprisonment for all indictable sexual offences is a fraction over 4 years, I suspect Clarke was right when he said the 5 year average quoted to him was skewed downwards by inclusion of offences that you claim are not rape, bur that he refers to as less serious rape.

AndyG,

Yes, you’re right, the fact that he eventually graciously acknowledges that date rape can sometimes be serious entirely negates the fact that he’s spent the rest of the interview saying that date rapes aren’t as “serious” or what most people mean by “rape”, and suggesting that there’s a blurry line as to whether those women were ‘unwilling’ or not.

Clarke did not at any point explicitly say that date rapes aren’t serious or are not as serious as rape or forcible rape or what most people mean by rape. But he does explicitly say that “Date rape can be as serious as the worst rapes”.

G.O., thanks for posting those quotes – it helped me find the transcript of the full interview.

Where we disagree is over the question of whether Ken Clarke merely implied that:

(1) some rapes are less serious than others in the sense that aggravating factors are absent, or mitigating factors are present – but all rapes are serious crimes involving violence against unwilling victims

(2) some rapes are less serious than others in the sense that they are not really ‘rapes’ at all as the term is usually understood, because they are not ‘forcible’ or ‘violent’ and the victim is not ‘unwilling’.

And I think (2) comes a lot closer to the mark when you look at what he actually said:

“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.”

“rape in the ordinary conversational sense. Some man has forcefully, with a bit of violence…”

“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”

Suggesting that some rapes are less serious than others is one thing; suggesting that some rapes are not really rapes at all ‘in the ordinary conversational sense’ is another.

I do not think he is saying that they aren’t rapes. My guess (I have no evidence for the following) is that when most people see the word “rape” they do not think along the lines of lack of consent or capacity to consent but along the lines of force, some kind of attack – not the a lack of capacity owing to age or inebriation, say. Certainly that is what I recall automatically thinking whenever I see the word in the newspapers – even though I know the legal definitions of rape and consent. In the context of the interview this seems to be what Clarke is talking about – he is (accurately or inaccurately) saying that the average sentence Derbyshire has quoted is skewed by ‘sex with people who cannot legally consent because of their age’ (this was addressed by Unity in the OP) and ‘date rapes’, which “do vary extraordinarily one from another”. Derbyshire was saying that going by this average sentence any rapist could be out in 1½ months while Clarke is saying that what he thinks the public mean by rapist will never get as low a sentence as that after discounting. He does not think the public include an 18 year old having sex with a 15 year old in the ordinary conversational sense of the word “rape”.

I agree that he wasn’t particularly clear, and he may well have got things wrong but Derbyshire did interrupt and talk over him as well. I do not believe Clarke thinks what people are imputing to him, but this is a matter of (perhaps misplaced) faith on my part / charitable interpretation.

Either way, I think it is misguided to scalphunt a decent-ish Justice Secretary.

@ Chaise

“Confused. I thought you said it was offensive not to refer to sex with a minor as “rape”. ”

No, I didn’t (or at least I didn’t mean to; maybe I left myself open to misinterpretation).

@ Unity

Thanks, that is quite illuminating. It makes sense of some of the things Clarke seemed to be implying regarding ‘date rape’.

@ ukliberty

Especially in the light of Unity’s comment @ 59, I think your diagnosis is probably correct: Clarke meant to suggest that if a man, without the use of force, rapes a woman who is just too drunk to consent – the stereotypical case of ‘date rape’ – that isn’t really rape at all ‘in the ordinary conversational sense’, and isn’t a ‘serious’, ‘violent’ crime in the same way as ‘forcible’ rape. Personally I think that makes things worse, not better.

67. Robin Levett

More generally; this whole interview (and I’ve now read the transcript) was in the context of sentencing. If sentences vary, it is absurd to eschew the words used in sentencing generally – serious and less serious – to describe the specific circumstances of the offence punished by those sentences.

It cannot be right that, for example, a 17 year-old boy having consensual sex with his girlfriend at 11:55pm on the day before her 16th birthday should attract the same punishment as the 35-year old who drags her into the bushes in the park on her way home that evening and rapes her at knifepoint. It cannot be right that the one is not “less serious” than the other. Inddeed, ironically, many here including the OP seem not to be prepared to regard the former as rape at all…

The entire interview, by the way, shows where Ms Derbyshire got the spurious “5 years on average”. While initially she claimed that “The five years, the five-year stats come from the Council of Circuit Judges”, eventually she got a bit clearer and revealed she was referring to, and misunderstanding, sentencing guidelines.

The starting point for a rape by one man of an adult woman, *with no aggravating factors*, is the 5 years she was talking about. The range (which would be where judges actually set the sentence) is 4-8 years. The aggravating factors include intimidation or coercion (pre – or threats post offence); use of drugs or alcohol to facilitate the offence; and the only potentially mitigating factor is prior consensual sexual activity with the victim on the same occasion and immeidately before the offence.

The offences that Derbyshire was talking about and claiming attracted what she described as an average sentence of 5 years were the kind that included aggravating factors and hence would, on the document she was relying on, have pretty much without exception attracted more than 5 years.

Interview here:

http://www.bbc.co.uk/news/uk-politics-13444770

63/Robin Levett: I don’t get the same reading of the 2003 Act as you, there. The S9 offence is independent of any claims of consent. (Which is where we derive that someone less than 16 can’t legally consent). The S1 offence explicitly requires a lack of consent, so I can’t see how you could use the definition of the S9 offence to prove a lack of consent within the meaning of S74 for the purposes of S1. (Why have a separate S9 offence at all, if S1 would always apply due to the definition of who can give consent?) Anon was also wrong in that one has to be at least 18 to commit an S9 offence.

At any rate, “rape”, in the MoJ stats – e.g. http://www.theyworkforyou.com/wrans/?id=2011-02-16b.40741.h – separates rape (S1) from sexual activity with a child under 16 (S9-S15) and under 13 (S5-S8)

Light sentencing (inc non-custodial sentencing) is fairly common for the S5-15 categories, which is presumably at least in part down to courts not seeing much point in imprisoning teenagers for S9 and similar offences if there wasn’t otherwise a lack of consent.

It’s much rarer for the S1 rape offences to have light sentencing, but a fair number of them do. 174 of 999 got less than four years imprisonment. That’s really quite a lot of rapists, even if the average is much higher (http://www.theyworkforyou.com/wrans/?id=2005-03-15a.217750.h is old but suggests around 7 years mean sentence).

It cannot be right that, for example, a 17 year-old boy having consensual
sex with his girlfriend at 11:55pm on the day before her 16th birthday

That would neither be S1 rape (consent exists) nor S9 sexual activity with a child (neither is 18 or over), though, would it? Indeed, the age gap in S9 (below 16 victim, above 18 perpetrator) seems to be designed specifically to exclude that sort of near-age case. (Make him 18 and it’s still S9 rather than S1, and appears in a different row of the crime statistics)

69. Chaise Guevara

@ 66 G.O.

“No, I didn’t (or at least I didn’t mean to; maybe I left myself open to misinterpretation).”

Cool – looks like a communication breakdown!

Unity/50: That’s what I mean, yes. BCS gives an absolute floor of around 70,000 after you multiply its prevalence rates up to the population of 16-59 year olds, assuming no multiple victimisation.

Trying to get rid of that assumption is trickier – you have 1.7 as the multiplier; HORS237 also from 2002 references a study suggesting 2.9 instead, which I used in an earlier calculation. There are a few others, too.

I think it’s a fairly reliable survey, and gives results that are year-on-year comparable with each other (which is what it’s supposed to do) – but it’s no use for determining whether we have more rapes or fewer than other countries because their surveys – if any – will use different methodologies, and it’s no use for getting more than an order-of-magnitude estimate of the total number of rapes.

There are other problems, too, with statistics, which I’ve looked at in more detail before.

52/Bob B: Oh, I don’t believe the UK is significantly safer than nearby countries, but nor do I believe that it’s so much worse as is suggested by the reporting figures. (Surveys of cross-country lifetime victimisation are still difficult to get reliable international comparisons on, but show a much smaller difference than that table implies)

Good grief – we’re 70 comments deep and still debating the purely factual question of whether consensual sex with a teenage girl under 16 is or is not ‘rape’ in the eyes of the law (meaning cases e.g. of 17-year-old boys having consensual sex with their 15-year-old girlfriends are showing up in the figures on rape sentencing).

Would it help to put this question to bed if some of the people engaged in this debate (Unity, Anon E Mouse, cim, Robin Levett) declared their credentials? Are any of them lawyers (or otherwise qualified to give an ‘official’, legal answer to this question)?

72. Window2the_soul

Unity.

This is from a BBC article in 2010:

—————————————–

Preston rapist ‘thought girl was 16’

A teenager who admitted raping a 12-year-old girl he met on Facebook got a suspended jail term after a judge heard the victim lied about her age.
Junaid Bhuta, 19, from Frenchwood, Preston, contacted the girl through a friend’s request on the website in April 2009.
Manchester’s Minshull Street Crown Court heard that the girl said she was 16 and the pair met and had sex.

Bhuta admitted statutory rape and received a suspended six-month term.
Bhuta, who wants to go to university to study law, was sentenced to six months imprisonment, suspended for 18 months, and ordered to sign the sex offenders register for seven years.

He pleaded guilty to statutory rape of a girl under 13 on 6 March at a park in Preston, on the basis that he believed she was 16 and had a “reasonable belief” that it was her true age.

http://www.bbc.co.uk/news/uk-england-lancashire-10781281

——————————————-

Apparently he pled guilty to ‘statutory rape’. If what you say is true, how is that possible?

@70

Cim:

As I recall, I took a look at the study that suggested a 2.9 multiplier and wasn’t particularly happy with the methodology and some of the assumptions, which I why I used the 1.7 multiplier.

There are no definitive or 100% reliable stats around on rape, so what I aimed for – and think I got to pretty successfully – was a set of figures that show there the ballpark is and can be stood up on the basis of a reasonably reliable set of sources, in the hope that this would help anyone needing some figures to put some numbers under their argument without getting shot down in minutes for allegedly exaggerating or wildly underestimating prevelance.

That I came out with a headline close to the Alberti taskforce estimates gives me some confidence that I’m not too far off the mark. The Alberti figures were produced by medical statisticians from the DoH, and having worked with one or two over the years, I know from experience that they’re not prone to either overstating or understating their findings.

74. Robin Levett

@ G.O.:

Guilty; although it’s a long time since I regularly did criminal defence work.

@cim #68:

“The S9 offence is independent of any claims of consent. (Which is where we derive that someone less than 16 can’t legally consent).”

This is where we part company. It is section 74 that gets us to that position. not section 9; a 15 year-old does not have capacity to consent to sex, and hence her consent is not, by section 74, legal “consent”.

Section 9 doesn’t even make refer4ence to consent (factual or legal); that’s because of section 74 which says there can be none.

“The S1 offence explicitly requires a lack of consent, so I can’t see how you could use the definition of the S9 offence to prove a lack of consent within the meaning of S74 for the purposes of S1.”

If there is penetration by the man of the girl, without consent (per s74), that means all the ingredients of the section 1 offence are present (there can be no reasonable belief in consent where the victim is incapable of giving consent).

“(Why have a separate S9 offence at all, if S1 would always apply due to the definition of who can give consent?)”

To give a lesser offence which a jury will convict on. Try this thought: if, where section 9 applies it excludes charging for section 1 as a matter of law, then an 18 year old raping (ie with no factual consent) a 16 year old risks a greater maximum sentence (life) than if he raped a 13 year old (14 years).

Again, the sentencing guidelines include different starting points for section 1 rape depending on whether the victim is under 13, 13-15, or 16+; so section 1 must be available; the prosecution have discretion on the charge. I would imagine that in most cases a section 1 charge would be dismissed as an abuse if there was clear factual consent and understandign and the girl was approaching 16, but perhaps not where the girl was 13 and less clear what it was all about.

“Anon was also wrong in that one has to be at least 18 to commit an S9 offence.”

That is true, but doesn’t diminish his point.

G.O.

Especially in the light of Unity’s comment @ 59, I think your diagnosis is probably correct: Clarke meant to suggest that if a man, without the use of force, rapes a woman who is just too drunk to consent – the stereotypical case of ‘date rape’ – that isn’t really rape at all ‘in the ordinary conversational sense’, and isn’t a ‘serious’, ‘violent’ crime in the same way as ‘forcible’ rape.

I neither said that nor intended it nor do I think Clarke intended that meaning, but I sense I am about to repeat myself so I will leave it there.

Just out of interest, what do you think is the “ordinary conversational sense” of the word?

76. Dan Factor

Ken Clarke wants lower rape sentances. Some liberals want lower sentances for most crimes except rape. This is because most liberals are feminists and therefore see rape as a feminist issue and feel that calling for lower rape sentances as they would for other crimes, even murder, would be anti-feminist.

As a liberal I think rape sentances in the most serious of cases should be as lengthly as possible. In some cases serial rapists should probably never come out of jail.

71/G.O.: No legal training. (But then, Clarke has plenty of legal training and experience, and the whole sub-thread is about whether he’s wrong)

73/Unity: Fair enough. The area I think is very unreliable is under 16 – NSPCC and other surveys give a prevalence of “much higher than in adults” but vary considerably. Extremely difficult to devise a methodologically watertight study, too. (Now, for a qualitative “there’s a really serious problem” study that doesn’t matter, but for a repeatable study to see if prevention strategies are working, it does)

74/Robin Levett: Section 74 simply says “For the purposes of this Part, a person consents if he agrees by choice, and has the freedom and capacity to make that choice.”

Now, if there is legislation or settled case law elsewhere that defines people under 16 as not having capacity to make a choice in the general case, fair enough – but it doesn’t mention age specifically here. It seems to me that 74 could be read to allow for the possibility of consent between a 17 and 15 year old (or between two 15 year olds – what else, do we charge them both with S1 rape and/or S2-4 sexual assault since neither could legally have consented?) but still reject capacity due to power differentials in cases with much larger age gaps or younger children.

I know it’s only the explanatory notes, but the notes for S9 state “Whether or not the child consented to the activity is irrelevant.” not “It is not possible for a child to consent to the activity”

To give a lesser offence which a jury will convict on.

I don’t think that makes sense unless you accept that someone under 16 could consent to sexual activity in at least some circumstances (if you do accept that, which I do for cases where both are of a similar age, then yes, S9’s use is obvious). If it’s an absolute legal impossibility for someone under 16 to consent, then a jury that will convict on S9 but won’t convict on S1-4 must believe there is consent (the only difference between the two) but there can’t legally be any.

if, where section 9 applies it excludes charging for section 1 as a matter of law

If, yes. But why would that be the case, given the absurd result?

@76 Technically Ken Clarke wanted lower sentences for a number of crimes, including rape.

@ ukliberty

Sorry, I really thought that’s what you were driving at here:

“when most people see the word “rape” they do not think along the lines of lack of consent or capacity to consent but along the lines of force, some kind of attack – not the a lack of capacity owing to age or inebriation, say… In the context of the interview this seems to be what Clarke is talking about”

…i.e. when Clarke talks about ‘rape in the ordinary conversational sense’, which he says is a ‘serious’ and ‘violent’ crime, he’s talking about forcible rape and not e.g. the rape of someone too drunk to consent; the implication being, surely, that some of the cases the law sees as ‘rape’ (e.g. a man having sex with a woman who is too drunk to consent) are *not* cases of ‘rape in the ordinary conversational sense’, and so not comparably ‘serious’ and ‘violent’ crimes?

“Just out of interest, what do you think is the “ordinary conversational sense” of the word?”

Something like ‘sexual penetration without consent’, I suppose, though I won’t argue that when most people think of ‘rape’ they probably think of a ‘raped at knifepoint by a stranger’ sort of scenario. (There’s a difference between the sense of a word and the associations it commonly has; most people who think of a ‘doctor’ probably think of a chap in a white coat with a stethoscope round his neck, but that doesn’t mean the ‘ordinary conversational sense’ of ‘doctor’ is ‘chap in a white coat with a stethoscope round his neck’.)

80. Robin Levett

@cim (assuming you’re still there).

No time for a fully thought through comment; but I’m reconsidering the role of section 74, while struggling with how the general principle that one can consent to an assault (at least one not causing bodily harm) is excluded in the case of 13-15 year old girls under the SOA.

G.O.,

Sorry, I really thought that’s what you were driving at here:

“when most people see the word “rape” they do not think along the lines of lack of consent or capacity to consent but along the lines of force, some kind of attack – not the a lack of capacity owing to age or inebriation, say… In the context of the interview this seems to be what Clarke is talking about”

…i.e. when Clarke talks about ‘rape in the ordinary conversational sense’, which he says is a ‘serious’ and ‘violent’ crime, he’s talking about forcible rape and not e.g. the rape of someone too drunk to consent; the implication being, surely, that some of the cases the law sees as ‘rape’ (e.g. a man having sex with a woman who is too drunk to consent) are *not* cases of ‘rape in the ordinary conversational sense’, and so not comparably ‘serious’ and ‘violent’ crimes?

You seem to be talking in terms of ‘not serious’ but I am talking in terms of ‘not as serious’ – a spectrum of seriousness, if you will, with a lowerbound of ‘serious”, moving to more serious, very serious, extremely serious, not a lowerbound of ‘not serious’.

I don’t think he means a rape where the victim is too intoxicated to give consent is ‘not serious’ (I certainly hope he doesn’t, and if he does then yes, he ought to reconsider his position), I think he means it is ‘not as serious’ as a ‘forcible rape’, which logically follows – although that is an insensitive way of putting it, to say the least, and really more care should be taken using these words – from the proposition that a ‘forcible rape’ (or one with aggravating factors or other circumstances) is more serious, which legally it is. So I would agree that he was stupid / insensitive to use the phrase “serious rape” – because it can be understood to mean there is such a thing as ‘non-serious rape’- apparently interchangeably with “forcible rape”, as if only “forcible rapes” are serious.

(I suspect his language is influenced somewhat by the language used in legal documents; you know, in the Sentencing Council’s guidelines on sexual offences it talks about “serious sexual offences”, I can imagine people saying “what, is it suggesting some sexual offences are not serious?” )

At the heart of this, ISTM Clarke was taking issue with Derbyshire’s suggestion that a person convicted of ‘forcible rape’ could be out in 1½ years (I wrote months instead of years earlier, a silly mistake) if the discount could be applied.

Clarke: “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.”

I could reasonably suggest he is drawing a distinction between “the term in conversation” and the term used in, say, court, where rape has a specific legal meaning, a meaning that does not immediately spring to mind when one encounters it in ordinary conversation. As you say, “when most people think of ‘rape’ they probably think of a ‘raped at knifepoint by a stranger’ sort of scenario”, I’m not sure “sexual penetration without consent” springs to mind (perhaps it should, but it doesn’t).

(There’s a difference between the sense of a word and the associations it commonly has; most people who think of a ‘doctor’ probably think of a chap in a white coat with a stethoscope round his neck, but that doesn’t mean the ‘ordinary conversational sense’ of ‘doctor’ is ‘chap in a white coat with a stethoscope round his neck’.)

Once again someone has expressed my own thoughts better than I can myself – that is exactly what I am trying and failing to express, thank you.

(I re-wrote this comment seven times, trying not to dig myself a hole next to Clarke’s.)

82. Robin Levett

@ukliberty #81:

“At the heart of this, ISTM Clarke was taking issue with Derbyshire’s suggestion that a person convicted of ‘forcible rape’ could be out in 1½ years (I wrote months instead of years earlier, a silly mistake) if the discount could be applied.”

I would agree, and add that this all seems to have come about from some pretty poor journalism from Derbyshire, who didn’t even understand what her sources were saying: she repeatedly claimed that there were stats showing that the average rape sentence was 5 years, which was simply untrue, but led Clarke to seek explanations as to why her figures were out of synch with what he knew.


Reactions: Twitter, blogs
  1. Liberal Conspiracy

    Does the law see 'rape as rape'? http://bit.ly/ma0mKa

  2. Dafydd Young

    RT @libcon: Does the law see 'rape as rape'? http://bit.ly/ma0mKa

  3. Joe Jordan

    @geekyisgood FYI, there is a separate offense when there are mitigating circumstances on age: http://bit.ly/ma0mKa "unlawful intercourse"

  4. Double.Karma

    RT @libcon: Does the law see 'rape as rape'? http://bit.ly/ma0mKa

  5. Ben Mason

    RT @libcon: Does the law see 'rape as rape'? http://bit.ly/ma0mKa

  6. Roland Ellison

    Does the law see ‘rape as rape’? http://t.co/wxFyPqE via @libcon

  7. Chris Hawes

    RT @libcon: Does the law see 'rape as rape'? http://bit.ly/ma0mKa

  8. Harriet R

    @geekyisgood FYI, there is a separate offense when there are mitigating circumstances on age: http://bit.ly/ma0mKa "unlawful intercourse"

  9. Roland Ellison

    @MelissaCole he was a little glib. Maybe he should have clarified more along these lines: http://bit.ly/lI0ox7

  10. Joe Jordan

    @rantingkat @BeckyLindeman see http://liberalconspiracy.org/2011/05/18/does-the-law-see-rape-as-rape/

  11. sunny hundal

    @hierhelen sorry to hear that, but larke was also wrong on several factual statements he made. See http://bit.ly/ma0mKa

  12. Chris Huang-Leaver

    Does the law see ‘rape as rape’? | Liberal Conspiracy http://t.co/g7w7xiR via @libcon

  13. Larissa Rowe

    via @gjonesofficial http://tinyurl.com/3g3utvm Good arcticle that explains rape is rape regardless but sentance can change #rape #kenclark

  14. Simon Buckmaster

    Interesting read. Probably the closest to my own reaction to the story. RT @libcon: Does the law see 'rape as rape'? http://bit.ly/ma0mKa

  15. Andy Emmerson

    @santaevita http://liberalconspiracy.org/2011/05/18/does-the-law-see-rape-as-rape/

  16. AmandaSmith_nz

    I'm with Ken on this one. http://t.co/nBRzy44

  17. The errors of Ken Clarke « Though Cowards Flinch

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

  18. Stephen Whitehead

    Glad I didn't take time to write why kneejerk reaction's the wrong response to Ken Clarke since it's been done for me: http://bit.ly/ln7W1l

  19. Jose Aguiar

    Glad I didn't take time to write why kneejerk reaction's the wrong response to Ken Clarke since it's been done for me: http://bit.ly/ln7W1l

  20. Jonathan Ridge

    Been pointed towards LibConspiracy, who have a good article on Clarke and the legal side of the issue: http://t.co/3gHVTro

  21. Stardust we are

    @RedRector http://t.co/gDAV7Sm

  22. Demands for Ken Clarke’s head over rape comments, Cameron pushes NHS reforms and an elected chamber for the Lords?: round up of political blogs for 14 May – 20 May | British Politics and Policy at LSE

    […] goal. Liberal Conspiracy blogs on the government’s twists and turns as the story unfolds, and considers whether rape is indeed rape in […]





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