What Ken Clarke did get right

By Ellie Cumbo / @EllieCumbo

Of course all rape is serious. In any form, it offends against bodily integrity, sexual self-determination and the right to feel safe on the streets, in our relationships with others or even in our own homes.

This, among others, is the point that Secretary of State for Justice Ken Clarke spectacularly mangled when speaking to BBC 5 Live’s Victoria Derbyshire of “serious rape” and “forcible rape” as separate from “date rape”. Experienced gaffe-watchers will have recalled the more explicit comments made by John Redwood in 2007, suggesting that allegations of date rape involve nothing more than “a disagreement between two lovers as to whether there was consent on one particular occasion.”

Redwood’s words were inexcusable, in that his conclusion was that date rapes should not always be prosecuted. But Clarke, who was instead talking about sentencing, was actually right about one thing: there are important differences between cases which are relevant to the sentence that should be passed.

Most sexual offences are governed by the Sexual Offences Act 2003; these generally involve Person A carrying out specific acts on Person B which Person B does not consent to, and which Person A does not have a reasonable belief that Person B is consenting to. A wider range of circumstances is contained within this formula than most media comment would suggest.

For example, someone who has no intention to rape whatsoever, and truly believes that the other person has consented, is nevertheless guilty of rape if that belief is held to be unreasonable. This was a vital, and embarrassingly recent, addition to the law following a number of disgraceful cases, most infamously of three men who acted upon a friend’s suggestion that they should have sex with his wife, ignoring her resistance as it was merely her way of heightening the pleasure.

But appalling as all rapes are, it is simply not sustainable to argue that a defendant found guilty in these circumstances deserves the same penalty as one who was perfectly aware that the sex was non-consensual, and who may even have set out with that exact aim. Rational sentencing requires incredibly difficult judgments to be made, including about what is the worst kind of rape, or homicide, or any other crime. It is an unenviable task that must be better understood; Ken Clarke has done little to further this cause in choosing his words so badly, but so have those media voices who routinely decry “soft sentences” without demonstrating the slightest understanding of the complex range of issues involved in any sentencing decision.

Anyone moved to use the phrase “date rape” in future should remember that they can be every bit as serious as stranger rape, and the rapist just as culpable; it’s the circumstances of the rape that matter, not the fact that there was a film or a meal out beforehand. Even so, calls for Clarke’s resignation seem to suggest he was wrong to make any distinction at all, even in the context of explaining that some rapes result in heavier sentences than others. It would be better all round if he were to apologise, explain that he knows what date rape is, and, while he’s at it, make sure the rest of his party does too.