Ken Clarke’s now infamous ‘rape gaffe’ on Radio 5 Live with Victoria Derbyshire has sparked such a furore, somehow uniting left-wing feminists, Ed Miliband, the Sun, and the Daily Mail on one side, leaving the bizarre alignment of the Tory party and the Guardian newspaper on the other. It’s true that some of the criticism has been loud, partisan, emotional, and ill-informed, but the reason this is so painful to see is that the usual tabloid shouting is, as usual, drowning out the serious, legitimate questions raised by Clarke’s remarks.
It’s probably fair to say that people are mostly annoyed by Ken Clarke’s dismissive attitude to the “sort of rapes” that only result in a five year sentence. To wave away Victoria Derbyshire’s point that some rapes only get five years because that number “includes date rapes” is extremely damaging. No-one is saying we should punish every single rape with exactly the same sentence. What people are saying is that we should determine sentencing based on factors like whether weapons were used, or how many perpetrators there were, or how many times the rapist had offended, not based on what the victim’s relationship to the perpetrator was, or – specifically – whether he bought her dinner first. We might consider a stabbing worthy of a higher sentence if carried out by a gang rather than by just one person, and so we should do so with rape, of course we should. But surely no-one would dismiss low sentences for stabbings by saying, “Oh, but that includes people who bought their victim a cup of coffee before they stabbed them. That situation can be confusing.”
A lot of commentators are pointing to the distinctions we make between different types of murder. Leaving aside that fact that ‘murder’ is a broad terms which covers poisoning, drowning, stabbing, and a whole range of physical acts, while ‘rape’ refers to a specific physical act, there is no particular misconception or argument about what constitutes a murder in the first place. This is why there’s also a concern about the Justice Secretary’s assumption than when people talk about rape, and the sentences given for it, they are talking about “the classic rape of someone who jumps out on an unsuspecting woman.” They’re probably not. Because this isn’t how most rapes happen. And one of the main reasons so few of them get reported, and so few of those that do get reported get to court, is that a lot of the time, cases get ignored or dropped because the victim, despite the trauma and the flashbacks and the nightmares and the physical injuries and everything else, still may not be certain that what actually happened to them even really ‘counts’ as a rape, because of the context it happened in. And similarly, some rapists do not even realise they are rapists.
I would prefer to hear my Justice Secretary talking about how to make sure victims know they will be taken seriously by the police, no matter how they know their rapist or no matter how they behaved leading up to the attack. I would like to hear more discussion of the fact that some rapists do not even know they are rapists because they didn’t leap out on an unknown victim or use any weapons. And on the matter of trials being distressing for the victim, I’d like to hear my Justice Secretary talking about how to make them less so: preventing the dragging up of irrelevant information like the victim’s past sexual history would be a good place to start. It is, to put it mildly, incredibly irresponsible for a senior, respected figure like Ken Clarke to demonstrate such an unawareness of what most rape actually involves.
I doubt he meant to do anything of the kind, but you only have to listen to people chatting in casual conversations in pubs as well as across the internet and blogosphere (not to mention columnists like Richard Littlejohn; also an influential and popular voice who should behave with a bit more responsibility) equating ‘date rape’ with regretted drunken one-night stands and all sorts of other hypothetical nonsense about “crying rape,” which – even if that stuff was happening to the kind of extent that would justify this mad paranoia about women running around everywhere dying to make false rape claims, the kind of scenarios described in articles like Littlejohn’s (and in ordinary conversation) would, frankly, almost certainly never result in a conviction in a million years – to see how the people making these arguments are now claiming that the British Justice Secretary shares and endorses their paranoia. An awful lot of those voices calling for greater distinctions between different “sorts of rape” seem to be suspiciously worried about protecting men from false accusations, rather than protecting women and other men from rape. At the risk of being told to “calm down dear” by someone, I’m afraid it smacks a hell of a lot of boring old defending male privilege to me. False accusations happen in all areas of law, and the law treats everyone as innocent until proven guilty. If you want to make sure you’re never accused of rape, all you can do is make sure anyone you have sex with – male or female – is genuinely, enthusiastically consenting first. Our courts should be competent enough to do the rest.
The anger about the plan for a sentence reduction when a criminal gives an early plea of guilt is probably the most important point of controversy, though, because it relates to actual government policy, rather than just privately held opinions and perceptions. It’s my view that we shouldn’t be rewarding criminals for early confessions at all; even the 30% reduction brought in by Labour is too generous. Making it as much as 50% is ridiculous, and, for crimes like rape, where the re-offending rate is north of 90%, it’s extremely dangerous.
Anyone who has read my blog much will probably know I’m not someone who believes in being ‘tough on crime’ (i.e. nasty to criminals) just for the sake of it. I’m a passionate defender of the European Court of Human Rights, I’ve been called “sickeningly liberal” on Twitter (which I’m rather proud of to be honest, although it wasn’t mean kindly), and I’m actually delighted by a lot of Ken Clarke’s proposals. He’s right to say, for instance, that we lock up an awful lot of people when we really don’t need to. It’s worth keeping in mind, in the context of this discussion, that the Labour Party brought in over 3,000 new laws in 13 years, and 1,000 of those laws carry a prison sentence. Similarly, a renewed focus on rehabilitation whilst in prison is an excellent idea, and should be applauded. All of this work from Clarke is great news. So don’t start taking my temperature and bringing me bath salts: I haven’t turned into a hang em and flog em scrap the ECHR type just yet.
But supporting rehabilitation schemes where applicable, and wanting to keep prison space available for the people we really need protecting from, instead of petty criminals. surely doesn’t mean that the people we do need to lock up should be rewarded for the flaws in our justice system? We really, really ought to be able to get a more proportionate number of convictions for rape by making the reporting procedures better, by making trials less distressing for the victim, and by making sure there is a proper incentive for the victim to take the case to trial. A reduced sentence if the rapist pleads guilty is arguably doing just the opposite.
I don’t doubt Ken Clarke’s intentions on this issue for a minute, and I know he’s much more experienced in his field than most politicians, including our esteemed Prime Minister, but I can’t help notice that when Victoria Derbyshire actually asked Ken Clarke during their now infamous interview whether he had spoken, recently, to any rape victims about his proposals, he said no, he hadn’t. I also noticed that the extremely brave lady who called into 5 Live, when asked, said she thought going through a trial, however unpleasant, was worth it, to see decent length sentence given (or rather, in her case, that it would have been worth it, had a decent length sentence actually been given at the end of it). I have also personally spoken to victims of rape who have said something very similar: indeed, that, actually, for some, facing an attacker in court and confronting them, then seeing justice to be done, can be incredibly empowering. We should be aware that not every victim of rape is too frightened to see their attacker in court, and that, just as not every rapist fits the “classic” rapist stereotype, so also not every victim of rape fits in with any “classic” victim stereotype, either.
There are, I’m sure, other victims who would feel differently, and if we’re all seriously resigned to the fact that trials just have to be as traumatic for victims as they currently are (something I refuse to believe is entirely beyond our power to fix), yes, perhaps it might remain a sensible idea to incentivise an early plea. Why not add on an extra four years to an eight year sentence as a punishment for not pleading guilty earlier on, making the whole sentence twelve years? As opposed to knocking four years off an eight year sentence, leaving it at only four? This isn’t semantics: it’s the difference between a twelve year sentence and a four year sentence.
Ken Clarke is still probably a better choice for Justice Secretary than any other candidate, in any mainstream party (although that could be more of a reflection on the depressingly grey makeup of the parliamentary front benches than it is on Clarke’s particular talents). I also have to admit that there’s something refreshing about a politician who credits the public with enough sense to understand what he means when he speaks his mind. At least he says what he thinks and explains his policy to us directly, trusting us to listen to him, not the Sun, and giving us the chance to disagree, get offended, call him to account, or, hopefully, discuss the finer points of it in length with him. Not for the first time, I wish he would school David Cameron in this a bit. It would be nice to have a Prime Minister who knows how to debate with the public like a grown-up. Cameron’s uniquely patronising manner saves him getting a roasting of the kind Clarke is getting because Cameron fails to say anything of substance in the first place. But it doesn’t mean that if he did dare be as outspoken as Clarke, his views would be any more palatable, and I suspect the same would apply to any successor Clarke would be likely to have.
But none of this gets Ken Clarke off the hook. Being the most liberal person in the cabinet doesn’t mean it’s okay if you fundamentally misunderstand and exacerbate one of the most difficult problems in prosecuting one of the most serious crimes possible to commit. Because ultimately, the low conviction rate isn’t a result of a failure to be specific enough about different degrees of rape, is it? Yes, we should be worried about how unpleasant trials are for the victims. But perhaps we should be more worried about how many cases get dropped before they even get to court; about how many aren’t even reported? About how many cases are not taken seriously, and how many victims are made to feel by family, friends, by public discussion, and even, at times, by the police, that their experience is not even considered a real, “serious” rape? Ken Clarke’s comments, whether he intended it or not, have, if nothing else, exacerbated the very misconceptions which make this so, and for that alone, I’m afraid he really does deserve our severe condemnation.