Thursday, May 19, 2011

Kenneth Clarke, rape and the paucity of political debate in Britain

The row over Kenneth Clarke's comments on rape exemplifies what is wrong with our politics: the obsession with identifying gaffes and comparative lack of interest in the substantial interests involved.
Of course, Clarke's comments were crass: there is no such thing as a rape that is not serious. And the argument that it is somehow better to be raped by someone you know is a very questionable one.

But no one believes that Clarke really believes that rape is not serious. He spoke in a clumsy and thoughtless way, which is regrettable but is hardly a reason for resignation. It is no surprise that the right-wing press is after his moderate blood, but the way Ed Miliband has joined the clamour must be a great disappointment to those who believed he was a Labour moderniser.

And his point that looking at the average sentence for rape does not tell us very much is a valid one. Indeed, the variation in sentences for rape suggests that we do regard some rapes as more deserving of punishment than others.

The more important point at stake has hardly been discussed. Clarke was talking about rape in the first place because of his intention to halve the sentences of offenders who plead guilty. It is this we should be talking about.

I am not a supporter of plea bargaining at the best of times. It risks raising the interests of administrative convenience above those of individual justice. And if the differential in punishment is great enough, it can put pressure on the innocent to plead guilty.

Plea bargaining seems particularly inappropriate in the case of rape. Firstly because it is such a serious crime. And secondly because of the low conviction rate. Will it even work, if offenders do not believe they will be convicted?


martijn said...

You're the first one who actually mentions the problem with plea bargains in itself and how they might encourage the innocent to plea guilty. I think that's far more important an issue than whether Clarke defended the current practise well enough against tabloid style-accusations from the BBC interviewer.

One argument for it, that Clarke actually made and that I think made some sense, is that especially in the case of rape it would make things a lot better for the victim, would (s)he not have to go through a long trial, including possible accusations by the defendant and their legal team.

Ken said...

I think the conviction rate is low because we report it in very different ways to other crimes though - the conviction rate for rape if it actually gets to court is in line, if not better, than other types of crime. The problem is, of course, the difficulty in proving rape. Most cases are not debates about whether there was intercourse, but whether it was consensual or not. In many cases the evidence is little more than hearsay, and unless you change the presumptions of the legal system I'm not sure how you get around that.

Moggy said...

"the variation in sentences for rape suggests that we do regard some rapes as more deserving of punishment than others."

Precisely. See p24 of the sentencing guidelines on sexual offences here:

However clumsily put, Ken Clarke was exactly right to say that the law distinguishes degrees of seriousness of rape offences, and Miliband was a populist buffoon to suggest otherwise. It seems some politicians have very little idea as to how the criminal justice system actually works.