Thursday, 19 May 2011

Raping common sense

Rape is a subject only the bravest or most foolhardy politician deals with because you can be sure that anything you advocate, short of castration of all male babies at birth, will result in a torrent of high-volume but low-quality nonsense from a whole raft of attention seeking morons.

Ken Clarke proclaimed, to universal outrage from the non-thinking, that some rapes are worse than others (summarised here). He was, of course, absolutely correct. Some murders are worse than others, some armed robberies are worse than others, some speeding offences are worse than others and some rapes are worse than others.

It should be observed at the start that there are two broad categories of rape, reflected in the American distinction between "statutory rape" and "rape". Statutory rape is, in broad summary, consensual sexual intercourse where the law deems one or both of the participants to be incapable of giving consent even though they do actually give consent. In this country the age of consent is sixteen, so every time a girl or boy under the age of sixteen has sexual intercourse the other person involved commits rape according to English law and it is fair and sensible to call it "statutory rape" even if both parties consent. It is not rape according to the law that applies to adults because adult consent is recognised as being of value in the eyes of the law, but consent under the age of sixteen is deemed impossible. It takes a staggering degree of blind ignorance to be unaware that girls and boys of fourteen and fifteen have been rutting for generations, they certainly did when I was at school. Nonetheless, the law is as it is and it has to draw a line somewhere, however imperfect or unreasonable that line might be in particular cases.

"Statutory rape" itself comes in many shapes and forms. You can have two fifteen year-olds "doing it", in which case each is raping the other according to the law. You can have one under-sixteen and one of sixteen; one of fourteen and one of nineteen; one of fifteen and one of forty and so on and so forth. According to the law, each of these instances involves exactly the same offence but only a fool would suggest they are all the same. As a matter of everyday experience we might like to presume that the older person always holds sway and, as a general rule that might well be true, but it is far from always the case.

"Rape" as opposed to "statutory rape" arises where one party does not consent to intercourse. It might be the male or it might be the female. Is it not obvious that a difference exists between every "rape" and every "statutory rape"? In the former one party does not consent, in the latter both parties consent but the law does not recognise the consent of at least one. In the former it is necessarily the case that one person is forcing themselves on another in the most intimate way possible whereas in the latter no one is necessarily being forced to do anything.

So what of "non-statutory rape", is it a single black-and-white offence without shades of grey? Of course not. Some rapes involve the minimum possible amount of violence for the perpetrator to get his or her way while others include threats of violence from the mild to the utterly terrifying or violence itself of every conceivable degree. None of this dilutes the fact that the act of rape itself is a serious violation of one human being by another, and Mr Clarke was not suggesting otherwise. He was pointing out nothing more than that some rapes are more serious offences and, therefore, deserving of harsher sentences than others.

I first learned of this episode when listening to a radio news broadcast while driving back home after collecting a pile of manure. As soon as the BBC's summary of Mr Clarke's comments was given I said to myself "it's Wednesday, Milliband will have called for Clarke's dismissal at Prime Minister's Questions". Lo and behold, Miliband called for Clarke's dismissal at PMQs. Pure student union politics - naive, unrealistic and failing to address the point that was made. It was like having Gordon Brown back but with a fake mockney-estuary accent rather than a dribbling, bitter Scottish brogue.

The absurdity of Miliband's position is that he had an open goal and chose to kick his opponent rather than the ball. Ken Clarke did not just offer opinions about rape out of the blue, he did so in the context of a proposal to reduce the length of time some rapists spend in prison after conviction. Perhaps Miliband was mindful of his own party's failings during their thirteen years in government, during which sentences for serious offences got shorter and shorter and punishments for petty regulatory infringements got harsher and harsher. The standard three years' imprisonment for a first domestic burglary has become a caution or written warning or a few hours of community service. The standard seven years for rape without extrinsic violence has fallen to between two and three. Armed robbery now gets six years rather than twelve. Defrauding the taxpayer of tens of thousands of pounds earns only eighteen months when four years would have been unappealable twenty years ago. All this happened during the previous government's time in office, sadly it is continuing now.

Rape is a nasty offence. Forcing someone into the most intimate possible act against their will, with possible consequences of unwanted pregnancy or sexually-transmitted diseases, is barbaric to my simple mind. I doubt that many would disagree with the sentiment "no, you just don't do that to someone else, not ever". Few crimes get or deserve that reaction. Statutory rape in which consent is genuine does not get or deserve that reaction. Current sentences for non-statutory rape are derisory because Parliament has decreed that they should be. It is for that serious dereliction of duty that politicians should be held to account, not for pointing out the blindingly obvious.


Barnacle Bill said...

It is a shame that politics has entered into the sentencing equation so much nowadays.
Politicians should just stick to defrauding us taxpayers, leaving sentencing up to the judiciary.

john miller said...

If ever an incident proved the adage that, in a modern democracy, we get the politicians we deserve, this is it.

Jacob Ward said...

I agree with your main point, but I should point out that, post-Sexual Offences Act 2003 there is no longer a 'real' age of consent. A charge of Rape under s1 of the act requires a lack of consent. There are other offences (including another offence with "rape" in its name, "rape of a child under 13" (s5)) but there is no real "statutory rape".

TheFatBigot said...

Thank you for that Mr Ward. My days of criminal practice are many years behind me and I often make the mistake of assuming that things haven't changed when they have.

I hope my central point remains valid. Whether the word "rape" is used to define an offence the substance of the wrong-doing cannot change.

Mark Wadsworth said...


H.R. said...

Since when have politicians ever been able to recognize, let alone point out, anything blindingly obvious?

It seems to me that any politician with the ability to see anything blindingly obvious should be automatically barred from holding office. It's not part of their skill set.

Off Topic P.S.
The Rapture has come and gone and I'm still here. Is that bad or good?

And if I don't get a response from you Mr. F.B., does that mean...??? ;o)

Dave said...

I would have thought that anyone capable of dressing themselves would have understood the point that Ken Clarke was making?

I'm sure that I read somewhere in the newspaper coverage of this episode that if two consenting adults who may have both been drinking have intercourse then the woman can later claim or report that she was "raped" I hope I misunderstood what I was reading.

H.R. said...

Okay, okay Mr. F.B.

Very amusing. We know you didn't get taken in the Rapture last Saturday. Mr. Camping has postponed the Rapture until October 21st.