Ken Clarke - Good rape and bad rape

[The Don]

Okay so the title doesn't really match the story but Justice Secretary Ken Clarke is in very deep water for suggesting that some rapes are worse than others.

http://www.bbc.co.uk/news/uk-politics-13450618

In essence the government are suggesting changes to the rape law including:

• Different classifications for different types of rapes (so premeditated violent rape would be considered a different crime to non-consensual sex without threat of violence)
• A 50% sentence discount for pleading guilty at the outset

The second point is, I believe an attempt to get more convictions and to spare some victims the pain of appearing in court.

The first point, I presume, is to influence the tariff for different rape classifications.

I am conflicted on these points. From the victims' perspective rape is rape but I can appreciate that someone who has committed a number of pre-meditated violent rapes may present a greater threat to society (or require more rehabilitation) than someone who commits a single non-consensual sexual act when, say, under the influence of alcohol or drugs (although I'm sure you can argue the contrary). I feel judges already have enough leeway in sentencing to allow the nature of the rape to be taken into account.

On the sentence discount, if it works and a number of rapists plead guilty and improve the conviction rate and spare victims the pain of having to confront their attacker. Whether 50% is appropriate is another matter.

I certainly think that Ken Clarke was condescending (I heard the Radio 5 interview and was open-mouthed) and I believe it's being sold incorrectly. I think people may be more likely to at least consider the proposals if:

• A 100% sentence increase is given if the accused fails to plead guilty
• One or more additional "aggravated rape" crimes are introduced with an even higher tariff than is currently the case

Let me re-iterate. I believe rape is rape and should be treated as such and it's all an abomination. I feel that pre-mediation and violence in the rape most certainly should be factors when sentencing is taken into account. I'm not sure about different crimes though.

Persuading people to plead guilty is a good thing but I'm not sure how happy I'd be for a rapist to be out of prison in a couple of years (8 year tariff, 50% discount for a guilty plea, 50% discount for good behaviour).

I await my pummelling

 

[Darat]

Okay so the title doesn't really match the story but Justice Secretary Ken Clarke is in very deep water for suggesting that some rapes are worse than others.

http://www.bbc.co.uk/news/uk-politics-13450618

In essence the government are suggesting changes to the rape law including:

• Different classifications for different types of rapes (so premeditated violent rape would be considered a different crime to non-consensual sex without threat of violence)
• A 50% sentence discount for pleading guilty at the outset

The second point is, I believe an attempt to get more convictions and to spare some victims the pain of appearing in court.

The first point, I presume, is to influence the tariff for different rape classifications.

...snip...

And it is not as if that would be much of a change to what happens now in which there is a 30% "discount" on the tariff for a guilty plea.

...snip...

On the sentence discount, if it works and a number of rapists plead guilty and improve the conviction rate and spare victims the pain of having to confront their attacker. Whether 50% is appropriate is another matter.

...snip...

Since we have the data on the 30% discount I would have thought we could make quite a good call on what the likely increase in convictions/guilty pleas would be if we went to a 50% discount.

I certainly think that Ken Clarke was condescending (I heard the Radio 5 interview and was open-mouthed) and I believe it's being sold incorrectly. I think people may be more likely to at least consider the proposals if:

Yeah his wording was clumsy but how the interview has been reported is again one of those media stories that often interferes with the application of reason in political matters. No bloody wonder we don't get sensible legislation!

• A 100% sentence increase is given if the accused fails to plead guilty
• One or more additional "aggravated rape" crimes are introduced with an even higher tariff than is currently the case

I did think about the 50% discount being turned into a 100% increase would be a better way of presenting the idea! Terrible that we have to consider "spinning" such things in such a way but it appears to be about the only way at times.

Let me re-iterate. I believe rape is rape and should be treated as such and it's all an abomination. I feel that pre-mediation and violence in the rape most certainly should be factors when sentencing is taken into account. I'm not sure about different crimes though.

Persuading people to plead guilty is a good thing but I'm not sure how happy I'd be for a rapist to be out of prison in a couple of years (8 year tariff, 50% discount for a guilty plea, 50% discount for good behaviour).

I await my pummelling

Apparently it would mean that a rapist could be released on licence in as little as 1 year and 3 months (plus of course less the time they spent imprisoned waiting to go to trial).

It's obviously a complex matter and I really don't know or even have a strong opinion on what would help increase conviction rates and what is the appropriate punishment/rehabilitation.

One thing I did find very bad was the emphasis that Clarke's words were of concern to every woman in the country. Both sexes are subject to rape and from what I've read the conviction rate of rapists whose victim was male is much, much lower than the rate of convictions in rape cases in which the female is a victim.

 

[Lothian]

From the victims' perspective rape is rape but I can appreciate that someone who has committed a number of pre-meditated violent rapes may present a greater threat to society (or require more rehabilitation) than someone who commits a single non-consensual sexual act when, say, under the influence of alcohol or drugs (although I'm sure you can argue the contrary).

This. Sentencing is to punish an offender but also to protect society. Society needs more protection from (more rehabilitation required for..) someone who snatches people off the street and rapes them than from someone who didn’t stop when one party in a ‘relationship’ didn’t want to take the ‘heavy petting’ further.

As far as the victim goes the crime is the same but as far as society goes there are different threats and I would expect different sentences.

 

[The Don]

This. Sentencing is to punish an offender but also to protect society. Society needs more protection from (more rehabilitation required for..) someone who snatches people off the street and rapes them than from someone who didn’t stop when one party in a ‘relationship’ didn’t want to take the ‘heavy petting’ further.

As far as the victim goes the crime is the same but as far as society goes there are different threats and I would expect different sentences.

I too believe that repeat offence with pre-meditation and threat of violence should attract a longer sentence but then there are victims of the latter who would insist that by giving a lesser sentence, it implies that the crime is less bad and that, as a consequence, the victim suffered less.

The more I think of it, the more I think that the differentiation should be in terms of the sentence rather than the crime. To charge on a lesser crime may imply that the victim has suffered less.

The downside is that the range of tariffs has to be very large to encompass both extremes which may result in pre-meditated, repeated violent offences getting a smaller tariff than they deserve.

Then again, I could twist my own words in the above paragraph to make it sound that I think one type of rape is worse (and by implication that the other type is relatively OK) and that people whose attitude to sex is such that are prepared to engage in non-consensual sex are not that bad.

For a non-victim (like myself) who is male (and hence much more likely to be a rapist and less likely to be a victim of rape) to voice any kind of opinion at all is fraught with difficulties.

 

[commandlinegamer]

Some reaction from the blogosphere (via Twitter - David Allen Green aka Jack of Kent, including his own take on the news):

http://www.totalpolitics.com/blog/159082/politiciansand39-ignorance-on-rape-sentencing.thtml

Unfortunately, Ken Clarke was careless with his words when he talked about, “serious” rape. What he should have said was that the five year starting point is just that. The sentence gets higher and higher for every aggravating feature; if there was more than one person, if weapons were used, if there was torture, if children were involved. And many more.

http://lawseenfromthecheapseats.wordpress.com/2011/05/18/rape-is-not-a-political-football/

http://www.newstatesman.com/blogs/david-allen-green/2011/05/rape-sentences-clarke-victim

 

[andyandy]

I haven't heard what ken clark said, but if he said something like:

"All rape is dreadful and requires serious punishment. There should be flexibility within rape sentencing (which there already is) to account for specific circumstances." surely that is self evident?

1) An 18 year old having "consensual" sex with a 15 year old is statutory rape
2) Two people having sex whilst drunk, and it later decided that one person was to drunk to consent, is rape
3) Consensual sex where one person refuses to stop becomes rape
4) Someone using a date-rape drug on someone they meet at a party is rape
5) Someone violently assaulting a stranger in a dark alley is rape

We can all agree that rape is wrong, perpetrators need punishing, and society needs protecting. But when it comes to sentencing the factors surrounding the rape need to be considered too....

IMHO

(5) should have the longest tariff because of the nature of the physical assault, its location etc. Let's say 15-20 years.

(4) should have the next longest tariff - it speaks of a pathological pre meditated state, lets say 10-15 years.

(3) well, if this can ever actually be proved beyond reasonable doubt, if there's no proof of pre-meditation, lets says 2-5 years

(2) ditto (3) - 2-5 years

(1) Depending on the circumstances no prosecution or community service. If evidence of manipulation/grooming 1-2 years.

I'm pretty sure that this graduated approach already happens no?

Personally I'd like to see longer tariffs for (4) and (5) than currently seem to get handed down. Extending these would then allow a greater incentive for sentence reduction pre trial for a guilty plea, but i would hate to think of people spending less than 10 years actually behind bars (not on paraole) for these offences.

 

[The Don]

I haven't heard what ken clark said, but if he said something like:

"All rape is dreadful and requires serious punishment. There should be flexibility within rape sentencing (which there already is) to account for specific circumstances." surely that is self evident?

1) An 18 year old having "consensual" sex with a 15 year old is statutory rape
2) Two people having sex whilst drunk, and it later decided that one person was to drunk to consent, is rape
3) Consensual sex where one person refuses to stop becomes rape
4) Someone using a date-rape drug on someone they meet at a party is rape
5) Someone violently assaulting a stranger in a dark alley is rape

We can all agree that rape is wrong, perpetrators need punishing, and society needs protecting. But when it comes to sentencing the factors surrounding the rape need to be considered too....

IMHO

(5) should have the longest tariff because of the nature of the physical assault, its location etc. Let's say 15-20 years.

(4) should have the next longest tariff - it speaks of a pathological pre meditated state, lets say 10-15 years.

(3) well, if this can ever actually be proved beyond reasonable doubt, if there's no proof of pre-meditation, lets says 2-5 years

(2) ditto (3) - 2-5 years

(1) Depending on the circumstances no prosecution or community service. If evidence of manipulation/grooming 1-2 years.

I'm pretty sure that this graduated approach already happens no?

Personally I'd like to see longer tariffs for (4) and (5) than currently seem to get handed down. Extending these would then allow a greater incentive for sentence reduction pre trial for a guilty plea, but i would hate to think of people spending less than 10 years actually behind bars (not on paraole) for these offences.

I think the problem was his use of the word "serious" in conjunction with the word "rape" implying (if you try hard enough) that some rapes were serious whereas others were essentially a harmless bit of tomfoolery (or at least that's what you'd believe from the comments and the way people reacted).

I genuinely believe he mis-spoke and used the wrong word to discriminate between examples 2 and 3 above and cases of rape where there was extreme violence.

The other thing that appalled people was the realisation that with a nominal 2 year sentence as per your example, with a 50% discount for pleading guilty and 50% for good behaviour, the rapist could be back on the street in 6 months.

I can understand how rape victims and rape victim groups can choose to interpret what Ken Clarke said as attacking them (in particular where the victim feels that the court has somehow judged them in the case of examples 2 or 3 above as being in some way culpable). The Labour party's behaviour on the other hand is political expediency of the first order and they should hang their head in shame (in the interests of clarity I should state that I have only ever voted Labour so I'm not politically aligned to Ken Clarke).

 

[richardm]

1) An 18 year old having "consensual" sex with a 15 year old is statutory rape

One of the examples Clarke gave was a 17 year old having consensual sex with a 15 year old. There's no need for inverted commas, because whether it's genuinely consensual or not makes no difference in the eyes of the law.

Clarke should know better than to be careless with what he says, but for all that I find it incredible that anyone could think that a case like the above is not less serious than anything non-consensual.

 

[The Don]

One of the examples Clarke gave was a 17 year old having consensual sex with a 15 year old. There's no need for inverted commas, because whether it's genuinely consensual or not makes no difference in the eyes of the law.

Clarke should know better than to be careless with what he says, but for all that I find it incredible that anyone could think that a case like the above is not less serious than anything non-consensual.

Well to say anything other than it's the most terrible thing ever is to implicitly support paedophilia (or something).

Certainly no politician or commentator is going to stick their head above the parapet on this one and the nature of politics means that opponents are going to exploit it in any way they can.

 

[richardm]

Well to say anything other than it's the most terrible thing ever is to implicitly support paedophilia (or something).

Certainly no politician or commentator is going to stick their head above the parapet on this one and the nature of politics means that opponents are going to exploit it in any way they can.

True. I must say I found the way Labour were on the "He Must Resign At Once" tack so quickly to be pretty tedious.

 

[egslim]

(2) ditto (3) - 2-5 years

If both persons got themselves drunk, aren't they then both responsible for whatever stupid thing they did together? Just because one of them is slightly less drunk than the other, doesn't make him solely responsible for both.

Everyone knows alcohol reduces inhibitions. Don't get drunk in a situation where you might regret losing them. Otherwise whatever you allow to happen in your intoxicated state is your own responsibility.

(3) well, if this can ever actually be proved beyond reasonable doubt, if there's no proof of pre-meditation, lets says 2-5 years

This type can be the most difficult to judge. I once had a girl tell me to stop, while she simultaneously thrusted her hips quite hard. Does that constitute a 'yes' or a 'no'?
Make it 0-7 years without pre-meditation, depending on circumstances and possible ambiguity.

 

[andyandy]

Certainly no politician or commentator is going to stick their head above the parapet on this one and the nature of politics means that opponents are going to exploit it in any way they can.

Quite, ed's calls for resignation just end up making him look puerile - he seems to have a knack of taking an open goal and mis-kicking so badly it balloons into his own net

 

[The Don]

I know, it's pathetic. If Ed had said something like "Ken's clearly got a bit confused - what he probably meant to say is .........." you get to belittle him without looking like a complete Richard.

 

[andyandy]

If both persons got themselves drunk, aren't they then both responsible for whatever stupid thing they did together? Just because one of them is slightly less drunk than the other, doesn't make him solely responsible for both.

Everyone knows alcohol reduces inhibitions. Don't get drunk in a situation where you might regret losing them. Otherwise whatever you allow to happen in your intoxicated state is your own responsibility.


This type can be the most difficult to judge. I once had a girl tell me to stop, while she simultaneously thrusted her hips quite hard. Does that constitute a 'yes' or a 'no'?
Make it 0-7 years without pre-meditation, depending on circumstances and possible ambiguity.

I agree both of these are going to be difficult to get a conviction from a jury. In the case of drink I think it has to be clearly a situation where one person has knowingly taken advantage of another person, knowing that what they are doing is wrong....ie if one person is close to paralytic and the other person still quite sober, and the quite sober person knowing that the other person wouldn't consent if they were less than paralytic .....

though there is definitely double standards on this - I doubt whether a man would ever get a prosecution against a woman for this.....

 

[richardm]

without looking like a complete Richard.

 

[The Don]

Four letter abbreviation of Richard, starting with 'D'

 

[Dave Rogers]

Four letter abbreviation of Richard, starting with 'D'

Alternatively, rhyming slang for the king between Edward V and Henry VII?

Dave

 

[Tatyana]

If both persons got themselves drunk, aren't they then both responsible for whatever stupid thing they did together? Just because one of them is slightly less drunk than the other, doesn't make him solely responsible for both.

Everyone knows alcohol reduces inhibitions. Don't get drunk in a situation where you might regret losing them. Otherwise whatever you allow to happen in your intoxicated state is your own responsibility.


This type can be the most difficult to judge. I once had a girl tell me to stop, while she simultaneously thrusted her hips quite hard. Does that constitute a 'yes' or a 'no'?
Make it 0-7 years without pre-meditation, depending on circumstances and possible ambiguity.

She was trying to push you off her.

 

[egslim]

I agree both of these are going to be difficult to get a conviction from a jury. In the case of drink I think it has to be clearly a situation where one person has knowingly taken advantage of another person, knowing that what they are doing is wrong....ie if one person is close to paralytic and the other person still quite sober, and the quite sober person knowing that the other person wouldn't consent if they were less than paralytic .....

Yeah, that's why I said 'if both persons get themselves drunk', they're both responsible.

Even if one of them is still quite sober, it's a tough call. Because the other's decision to consume alcohol and therefore to reduce inhibitions was taken in free will. As you say, the situation must be quite clear to make a case of rape.

though there is definitely double standards on this - I doubt whether a man would ever get a prosecution against a woman for this.....

Yeah, and conclusive proof is extremely difficult to get. There's a lot of room for ambiguity.

 

[egslim]

She was trying to push you off her.

Impossible, since she had her arms and legs around me tight.