![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
Entry tags:
In defence of Ken Clarke
I can't quite believe I'm doing this. Defending a Tory. But I've been reading crap about his comments on rape for two days, and I've got to get this out. Because Clarke is being misquoted and intentionally misunderstood, and that doesn't help the cause at all. What the (mostly) women attacking him need to realise is that this man, in his way, is on our side.
When the story broke, yesterday, it sounded like another clueless man who thinks rape isn't really rape unless it's a stranger in a dark alley. But then I tracked down a clip of what he actually said. I can't link to the audio clip but the BBC posted a transcript here.
We should be concerned that our Justice Secretary stumbles over terminology in such a vital area (he said "date rape" when what he was really referring to was statutory rape - teenagers having consensual sex when one of them is under-age), but if he is to be criticised it should be for that. Not with this understandable knee-jerk response to the way his words were interpreted.
Clarke was discussing a proposal that those accused of rape (and other crimes, but the debate focussed on rape) might get a reduced sentence as an incentive to plead guilty very early in the process, thereby sparing the victim the ordeal of trial. This suggestion has been around for a long time. It's already done, in fact; Clarke was proposing extending the scheme. He believes it would increase the number of convictions by increasing the number of guilty pleas, save the state the expensive preparation for a trial, and save more of the victims of rape having to face the ordeal of trial.
Victoria Derbyshire, the interviewer, pulled out the statistics on current sentences for rape, and suggested that under Clarke's proposal, a rapist could expect to serve an average of one year (half of a 2.5 year sentence) and that this would be a strong disincentive for victims of rape to come forward - who would be willing to put herself through the trauma of going to the police in the first place if she thought her rapist would end up with only a year in prison?
Clarke's response was awkward and clearly not well thought out, but he was making two points that have gotten confused and conflated in most of the media response.
a) The statistics Derbyshire used to get her "one year" figure include sentences for statutory rape, which Clarke believes is frequently consensual sex such as in the case of a 17 year old boy with a 15 year old girlfriend. He unfortunately referred to this hypothetical consensual sex as "date rape", which it's not, but his point was not that statutory rape isn't rape, but that sentences in such circumstances (where the sex was in fact consensual) tend to be light, thus bringing down the average sentence in the statistics.
b) That rapes do vary in severity in terms of the circumstances and level of violence involved, and that this is something judges must take into account when sentencing. Again his choice of language was terrible: he used the word "serious rape" when he meant rape accompanied by extreme violence, which implied he thinks other cases are less "serious". But I don't believe that's what he intended to imply.
I feel that, when campaigners emphasise "rape is rape" (which I have no argument with) that second point gets lost. There is a difference in the degree of violence involved and while the fact of the rape is unchanged - rape is rape - it's not unreasonable to expect a judge to take into account other crimes as well. A woman beaten close to death by her rapist should expect he'll get a more severe sentence because the assault would be punishable even if the sexual element were absent.
In his oddly unprepared and bumbling way, that's what Clarke was trying to say. And broadly speaking, I agree with him. This comes against a background of a ballooning prison population in the UK which is unsustainable. Frankly, we must either return to the laws of the eighteenth century (hang 'em all, in other words) or we must find ways to both reduce sentences and impose alternatives to prison. This is the only way to ensure that criminals who are truly a danger to society - and I include rapists in that category - can be accomodated within the prison system where they belong.
Rape is notoriously difficult to prosecute. All too often, the case comes down to the accuser's word against the accused. As a woman and a feminist, I lean toward a presumtion of guilt in such cases, but that's not the way our legal system works, nor should it. We have good (if imperfect) systems in this country to protect and support the victim in rape cases, but ultimately when it comes to trial the victim still has to face cross-examination in court. The only exceptions are for child victims. Even before the case reaches the courtroom, she has to endure investigations into her personal life, her sexual history, everything about herself and the attack, over and over again because lawyers have to prepare for all that to be aired out in court. And our adversarial system encourages some pretty brutal cross-examinations.
The police don't help the situation. A couple of high profile serial-rapist cases in recent years have exposed police incomptence and their presumption that a rape victim is lying until proven otherwise. (Admittedly, one of these was in London, and victims of any crime can expect no better from the Met. If the Met cared about protecting the public, Ian Tomlinson would still be alive.) In spite of specialist units and victim support systems, there is not a lot of incentive for victims to come forward, even now.
Then there's the part where the majority of rapes are not stranger rapes. Most involve someone close to the victim; it's not an easy thing to come forward in such cases and even harder to prove lack of consent in the absence of violence.
Clarke is seeing part of this picture. He's a lawyer, and has worked on rape trials. He knows from his own experience what rape victims go through. His proposal is designed to increase the number of rape convictions (currently, in the UK it's a pathetic 6%) and to make the process easier on the victims. What the hell is wrong with that as a goal?
But his proposal is imperfect. For starters, minimum sentences for rape are too low. Derbyshire is right about one thing: one year inside is not nearly enough. The minimum time needs to be more than that, and rapists should automatically go on the sex offenders register for life (this currently only happens if the sentence is 30 months or more, but it's particularly important in the case of rapists as the vast majority do re-offend).
Secondly, there needs to be a real effort to limit the use of irrelevant information about a victim that's admissible in rape trials. Her relationship with the rapist - that may be relevant. Her past sexual history is not. Thirdly, since in large part the crappy conviction rate in the UK is down to juries, there has to be some serious investigation into why juries find rape victims less credible than accused rapists, and what can be done about it. Because even if there are cases where women lie, the majority of these are not liars.
Most of all, cops need to start believing women who report rape and quit prosecuting women who are intimidated into dropping rape charges.
How about we stop dogpiling on a man who is trying to do the right thing here, and instead have a real debate about what more he can do?
When the story broke, yesterday, it sounded like another clueless man who thinks rape isn't really rape unless it's a stranger in a dark alley. But then I tracked down a clip of what he actually said. I can't link to the audio clip but the BBC posted a transcript here.
We should be concerned that our Justice Secretary stumbles over terminology in such a vital area (he said "date rape" when what he was really referring to was statutory rape - teenagers having consensual sex when one of them is under-age), but if he is to be criticised it should be for that. Not with this understandable knee-jerk response to the way his words were interpreted.
Clarke was discussing a proposal that those accused of rape (and other crimes, but the debate focussed on rape) might get a reduced sentence as an incentive to plead guilty very early in the process, thereby sparing the victim the ordeal of trial. This suggestion has been around for a long time. It's already done, in fact; Clarke was proposing extending the scheme. He believes it would increase the number of convictions by increasing the number of guilty pleas, save the state the expensive preparation for a trial, and save more of the victims of rape having to face the ordeal of trial.
Victoria Derbyshire, the interviewer, pulled out the statistics on current sentences for rape, and suggested that under Clarke's proposal, a rapist could expect to serve an average of one year (half of a 2.5 year sentence) and that this would be a strong disincentive for victims of rape to come forward - who would be willing to put herself through the trauma of going to the police in the first place if she thought her rapist would end up with only a year in prison?
Clarke's response was awkward and clearly not well thought out, but he was making two points that have gotten confused and conflated in most of the media response.
a) The statistics Derbyshire used to get her "one year" figure include sentences for statutory rape, which Clarke believes is frequently consensual sex such as in the case of a 17 year old boy with a 15 year old girlfriend. He unfortunately referred to this hypothetical consensual sex as "date rape", which it's not, but his point was not that statutory rape isn't rape, but that sentences in such circumstances (where the sex was in fact consensual) tend to be light, thus bringing down the average sentence in the statistics.
b) That rapes do vary in severity in terms of the circumstances and level of violence involved, and that this is something judges must take into account when sentencing. Again his choice of language was terrible: he used the word "serious rape" when he meant rape accompanied by extreme violence, which implied he thinks other cases are less "serious". But I don't believe that's what he intended to imply.
I feel that, when campaigners emphasise "rape is rape" (which I have no argument with) that second point gets lost. There is a difference in the degree of violence involved and while the fact of the rape is unchanged - rape is rape - it's not unreasonable to expect a judge to take into account other crimes as well. A woman beaten close to death by her rapist should expect he'll get a more severe sentence because the assault would be punishable even if the sexual element were absent.
In his oddly unprepared and bumbling way, that's what Clarke was trying to say. And broadly speaking, I agree with him. This comes against a background of a ballooning prison population in the UK which is unsustainable. Frankly, we must either return to the laws of the eighteenth century (hang 'em all, in other words) or we must find ways to both reduce sentences and impose alternatives to prison. This is the only way to ensure that criminals who are truly a danger to society - and I include rapists in that category - can be accomodated within the prison system where they belong.
Rape is notoriously difficult to prosecute. All too often, the case comes down to the accuser's word against the accused. As a woman and a feminist, I lean toward a presumtion of guilt in such cases, but that's not the way our legal system works, nor should it. We have good (if imperfect) systems in this country to protect and support the victim in rape cases, but ultimately when it comes to trial the victim still has to face cross-examination in court. The only exceptions are for child victims. Even before the case reaches the courtroom, she has to endure investigations into her personal life, her sexual history, everything about herself and the attack, over and over again because lawyers have to prepare for all that to be aired out in court. And our adversarial system encourages some pretty brutal cross-examinations.
The police don't help the situation. A couple of high profile serial-rapist cases in recent years have exposed police incomptence and their presumption that a rape victim is lying until proven otherwise. (Admittedly, one of these was in London, and victims of any crime can expect no better from the Met. If the Met cared about protecting the public, Ian Tomlinson would still be alive.) In spite of specialist units and victim support systems, there is not a lot of incentive for victims to come forward, even now.
Then there's the part where the majority of rapes are not stranger rapes. Most involve someone close to the victim; it's not an easy thing to come forward in such cases and even harder to prove lack of consent in the absence of violence.
Clarke is seeing part of this picture. He's a lawyer, and has worked on rape trials. He knows from his own experience what rape victims go through. His proposal is designed to increase the number of rape convictions (currently, in the UK it's a pathetic 6%) and to make the process easier on the victims. What the hell is wrong with that as a goal?
But his proposal is imperfect. For starters, minimum sentences for rape are too low. Derbyshire is right about one thing: one year inside is not nearly enough. The minimum time needs to be more than that, and rapists should automatically go on the sex offenders register for life (this currently only happens if the sentence is 30 months or more, but it's particularly important in the case of rapists as the vast majority do re-offend).
Secondly, there needs to be a real effort to limit the use of irrelevant information about a victim that's admissible in rape trials. Her relationship with the rapist - that may be relevant. Her past sexual history is not. Thirdly, since in large part the crappy conviction rate in the UK is down to juries, there has to be some serious investigation into why juries find rape victims less credible than accused rapists, and what can be done about it. Because even if there are cases where women lie, the majority of these are not liars.
Most of all, cops need to start believing women who report rape and quit prosecuting women who are intimidated into dropping rape charges.
How about we stop dogpiling on a man who is trying to do the right thing here, and instead have a real debate about what more he can do?