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”.
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.
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.