by Dennis Kavanagh

It’s 1991. A young and charismatic Bill Clinton indicates that he will seek the nomination of the Democrat party for president; the Super Nintendo is launched; the first gulf war is in full swing and good old Lord Lane in the UK abolishes the “anachronistic and offensive” marital rape exemption in R v R.

Shocked? Don’t be. The current rape debate really is taking place in a country where you could quite lawfully rape your wife up until the invention of 16 bit gaming technology. While Bush Snr was threatening to bomb Sadaam back to the stone age, Fred Flinstone sexual values were in full swing over in Blighty. Little surprise, then, that the backdrop to the latest discussion over rape takes place in a country where around 60,000 women are raped every year – the majority by partners or men they know – and only a tiny fraction, around one in ten, report it to the police. Of these few cases, less than 7% result in conviction according to rape crises England and Wales.

Rape and offences of assault by penetration are in this unique position because they’re often difficult evidentially. They’re not taken seriously and a set of myths have grown up around rape that make securing convictions the exception rather than the rule.

Into this delicate and fraught debate on this important issue blunders the justice secretary for a 5 minute dismembering live on air. If there’s such a thing as car crash radio, this was it. Ken’s normally affable and rational tone quickly became patronising and arrogant. In rapid succession Ken implied that the only real rapes were stranger rapes, demonstrated that he misunderstood the law on juvenile sexual offending, and showed that he had no idea what the average sentence for rape is or the relevant starting points. Forgivable in an affable bloke down the pub? Probably. Acceptable when you’re secretary of state for justice? Absolutely not. It was like discussing a subject with someone you half know and getting a terrible insight into what they really think that prompts you to quickly find someone else to talk to.

The reason for this poor display was pretty obvious. Ken had come on to discuss the “Let’s spend less jailing people” green paper and get some air time for his liberal new-style Tory credentials. He wasn’t prepared for the discussion, nor was he on top of his brief, two facts that tell you everything about the importance he attaches to this serious issue. S

o, was this just a bad day in the office that cuddly Ken should be forgiven for, or has he actually caused lasting damage? The unholy alliance of lefties who wouldn’t jail anyone and unhinged right wingers who don’t fundamentally believe rape is a crime are forming their ghastly internet echo chamber once again, fresh from their tawdry AV campaign hook up. On the various internet forums today you can read that the majority of rape complaints are false (a pernicious and untrue myth), that stranger rapes are sentenced more harshly anyway so what’s the fuss about (a quick glance at the 14 May 2007 Sentencing Guidelines says otherwise) and that Ken is the best hope for repeal of illiberal Blairite policies (compare if you will with the MoJ green paper proposing to extend curfew sentences to 16 hours a day and doubling of curfew sentences generally). I’ll let you guess which comments came from Tory or Labour websites though frankly the nonsense in interchangeable.

To be charitable, the blogosphere can generally be expected to be completely out of whack with public feeling, but I struggle to think of an example more stark that this. The public are rightly appalled at the derisory sentences handed out for rape. Let’s take an example under Clarke’s proposal. Rapist A contests his trial before a jury and is convicted, he falls to be sentenced in bracket 1 of the sentencing guidelines council table. That means the starting point is 5 years, the range 4 – 8. Let’s imagine it’s worth 8. Under Clarke’s proposal a plea at an early stage nets Rapist A a sentence of 4 years. Now remember that people serve half the sentence they are given and there you have it 24 months imprisonment maximum. Remember, that’s an upper end bracket rape which could be expected to contain aggravating factors such as ejaculation, threats over reporting, abduction, pregnancy.

No one seriously argues that sentencing discounts are always bad, it’s plainly sensible to encourage guilty pleas – but public protection and the societal disapproval implied in a term of imprisonment demand that reductions take place in a sensible sentencing environment whether the gravity of the crime is reflected in length of sentence. Victoria Derbyshire was quite right to point out the obvious – low sentences deter reporting because victims of rape rightly can’t see the point of putting themselves though the trial process ordeal when the punishments are so ridiculous. Victims of rape deserve a justice secretary who assures them that no discounts are automatic, that sentences for this offence are measured in years, not months and that rape is rape. What they got instead was a man who thinks good judgment is accusing the mail of attempting to inject “sexual excitement” into their headlines when that paper did no more than report what he was saying about er…. sexual offences.

This matters profoundly, and should alarm anyone who calls themselves left wing. Rape is a misogyny issue, unique in the criminal calendar because the myths surrounding it work in favour of rapists. Public statements, like car-crash interviews, can feed those myths. Implying that only stranger rape is serious when over 80% of rapes are committed by men known to the victim makes those victims less likely to report or to consider it a “proper rape”. The decision to report a rape is agonising and difficult for most victims. The language and tone of this debate matter to the extent that describing rapists who do not plead guilty as “messing about” as Ken did trivialises to an unforgivable degree.

Rapists in any event have little incentive in all but the most overwhelming cases to plead guilty, even if a 50% discount is enacted. They can be confident, particularly if they know the victim, that they’re unlikely to be convicted; and even in a worst case scenario they’ll be out free to rape again after a short sentence. Ed Miliband was right to raise the political temperature on this, not because casual and opportunistic resignation demands are admirable, but because, for all the wrong reasons, he happens to be right on this issue.

Dennis Kavanagh is a barrister.

Tags: Dennis Kavanagh, Ken Clarke, rape

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