Are some rapes more serious than others?

Oh dear, it would appear that Grouty the Snout Baron has stirred up a bit of a shit storm:

He said some cases of date rape or sex with under-age children might not qualify as rape “in the ordinary conversational sense”.

He also refused to agree with the statement “rape is rape”.

Ed Miliband, the Labour leader, called for Mr Clarke to resign over the comments.

His comments came during an appearance on BBC radio Five Live as he sought to defend plans to halve sentences for criminals who plead guilty early.

One victim of an attempted rape who telephoned the programme broke down in tears arguing that his plans would be a “disaster”.

In a series of heated exchanges on the programme he was accused of “patronizing” listeners after dismissing suggestions that rapists would get out of prison in a year as “total nonsense”.

And…

The Justice Secretary and former Tory Home Secretary, rejected suggestions that rapists might be excluded from plans to halve sentences if they plead guilty.

But he went on to say: “Assuming that you and I are taking about rape in the ordinary conversational sense, some man has forcefully…”

The presenter, Victoria Derbyshire, interjected: “Rape is rape.”

But Mr Clarke replied: “No It’s not.

“If an 18-year-old has sex with a 15-year-old and she is perfectly willing that is rape, because she is under age, she can’t consent, anybody who has sex with a 15 year old it’s rape.

“But what you and I are talking about is a man forcefully having sex with a woman and she doesn’t want to, that is rape, a serious crime, of course it’s a serious crime.”

Presented with sentencing statistics showing that the average jail term for rape is five years, Mr Clarke played the figure down remarking: “They include the 18 year old having sex with a 15 year old and they include date rapes, date rapes sometimes can be very confusing.”

Asked whether date rape is not as serious, he said: “Date rape can be as serious as the worst rape but date rape in my, you are quite right to say, very old experience of being in trials, they do vary extraordinarily one from another and in the end the judge has to decide on the circumstances.

“But I’ve never met a judge who confronted with a rapist as you and I would use the term in conversation would give him 12 months, that would be a crazy sentence.”

Talk about jumping in a bear trap.

Nevertheless, let’s try and apply a little common sense and reason to this situation.

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.

(Yes, mitigating factors can arise in rape cases, as in other cases, that may be relevant to sentencing but NOT to the facts of the case that lead to a 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 or other sex offences are, for what should be obvious reasons, treated as aggravating factors and should, therefore, result in the perpetrator receiving 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, however you want to slice it.

So far as justification for a sentencing policy which deals with rape in terms of notional severity – and is also the case in every other offence on the statute books – this stems in part from the fact that judges are required to balance several different factors when deciding on the appropriate sentence for the offence for which an offender has been convicted, one of which is that public protection. So, 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.

None of this changes the fact that rape is rape, it 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.

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.

  • Rape is rape. No means no. Full stop. 

    • Arthur

      How fucking articulate. Well done.

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  • Eleanor

    I feel you are conflating two ideas here. A violent rape has two elements: the rape and the violence. One could be convicted of ‘beating someone to a pulp’ and of rape. Who knew? Rapists can also commit other crimes at the same time.

    Similarly, to suggest that a sentence should take into account previous offences is not a comment on the ‘seriousness’ of each individual offence only a comment on the likelihood of the perpetrator reoffending.

    Much as I appreciate the measured tone of your words, I am left with the disturbing impression that you are trying to justify your personal instinct that there is rape-rape and some other, less serious, form of rape.

    I do not believe that you are correct in saying “Some rapes are objectively and legally more serious than others.” However this does not necessarily mean there are no arguments to be made for differing sentences to be handed down to convicted rapists.

  • Anonymous

    Eleanor,

    I used the phrase ‘objectively and legally’ specifically to indicate that the question of victims’ subjective experiences of rape are, for good reason, beyond the scope of this particular commentary.

    That’s much a larger and more complex ballpark and one that I specifically didn’t wish to address here because it would take the debate away from the specifics of Clarke’s comments.

    That’s not intended to suggest that a moral distinction should be made between ‘rape-rape’ and ‘other rape’ – as I’ve said, rape is rape – merely a reflection of the fact that the objective standards of a law and the subjective experiences of victims are not one and the same thing and must necessarily be approached differently in order to make sense of the complexity of the issues when debating rape.

  • Aggravating factors such as extreme violence surely need to prosecuted separately if all rapes are treated as equal.

  • Katy Newton

    I thought that Ken Clark was astonishingly insensitive in his remarks on this subject.

    Having said that, I’m fascinated by the way it’s turned into an attack on sentencing, and particularly on sentencing for rape.  All rape offences are not the same.  They are all extremely serious, and that should be the starting point, but clearly some will be even more serious than others.  Take robbery, for example.  Someone who grabs me by the shoulder and yanks my bag away is clearly going to get a lower sentence than someone who knocks me down and yanks my bag away, who in turn will get a lower sentence than someone who punches me in the face and yanks my bag away, who in turn will get a lower sentence than someone who puts a gun to my head and yanks my bag away.  In the latter two of these examples there are also likely to be separate sentences for the violence involved.  All of these offences are robbery offences and they are all to be taken seriously, but they can also be placed in an order of seriousness.  In all cases the sentence will start from the same point, but it will vary depending on the circumstances of the offending and the circumstances of the offender. 

    That’s how sentencing works across the board.  That’s how it works for burglary, for robbery, for assault, and indeed for murder, which I think we can agree is always as serious or more serious than rape.  The point that I think people are missing is that it is not about some offences of rape being serious and some not (although I can see why Ken’s remarks and general attitude in his interview would give that impression).  The point is that all offences of rape are serious offences, and that within that range of very serious offences, inevitably some rapes will receive even heavier sentences than others either because of their particular circumstances or because of the personal circumstances of the offender.

    Incidentally, there has always been a discount of some sort for an offender who admits his guilt at the earliest stage, saving the victim the trauma of facing him/her in court and the country of funding an expensive and pointless trial.  Again, that works across the board; it applies to sentencing in all cases, not just for rape.  Currently, the maximum such discount that can be given is 33%, but the judge has a discretion as to how much of a discount s/he gives and is never obliged to give the maximum, especially if the evidence is overwhelming or if giving the maximum would result in a derisory sentence. 

    The current proposal is that the maximum be extended to 50%.   Again, that wouldn’t just apply to rape cases, and it would not mean an automatic discount of 50%, it just means that if the judge thinks a particular case merits it then he can discount the sentence by that amount.  I think in practice it would be very unlikely to happen.  Personally, I’m opposed to it for the very simple reason that there is no evidence to suggest that such discounts encourage early guilty pleas, particularly not in respect of sexual offences which carry huge social stigma for the offender if s/he pleads to them.