It’s pretty unusual to find me coming to the defence of Ken Clarke. But I think he’s had very unfair treatment from the media over his recent comments. So far as I can see, while agreeing that rape is always wrong, never defensible, that NO means NO (add your own cliché), he is also saying that the term rape covers a variety of circumstances and motivations and degrees of culpability, and that sentencing policy should reflect that. Surely this proposition is so self-evident, that it is difficult to see what all the fuss is about.
Words like “rape” and “murder” cover a spectrum of activities, and degrees of culpability. Let’s consider a couple of murder scenarios.
First, suppose a kidnapper seizes the son of a wealthy family, and extorts money from the parents. Then after the ransom is paid, he seeks to cover his tracks by deliberately murdering his hostage.
Second scenario: a young husband returns home to find his bride in flagrante delicto with the milkman. In a fit of blind rage, the husband attacks the milkman, who dies of his injuries.
In both cases the assailant is guilty of murder, and deserves to be convicted and punished. But the cases are hugely different. In the first case, the murder is calculated, premeditated, deliberate and undertaken for money. In the second case, none of these comments applies. In the first case, I’d happily hang the murderer (I’m part of that retrograde majority which still believes in the death penalty). In the second case, a much more lenient sentence would be appropriate.
In the same way, let’s consider two rape scenarios.
The first is the classic “stranger-rape”, where a masked individual emerges from the bushes, hits his victim over the head with a blunt instrument, drags her into the undergrowth and rapes her, and the leaves her unconscious, careless whether she lives or dies.
The second is “date rape”. Imagine that a woman voluntarily goes to her boyfriend’s apartment, voluntarily goes into the bedroom, voluntarily undresses and gets into bed, perhaps anticipating sex, or naïvely expecting merely a cuddle. But at the last minute she gets cold feet and says “Stop!”. The young man, in the heat of the moment, is unable to restrain himself and carries on.
In both cases an offence has been committed, and the perpetrators deserve to be convicted and punished. But whereas in the first case, I’d again be quite happy to hang the guy, I think that most right-thinking people would expect a much lighter sentence in the second case. Rape is always wrong, but not always equally culpable.
My two scenarios also give the lie to one of the popular over-simplifications trotted out by the feminist tendency in these cases: “Rape is always about power and control and domination, never about sex”. In the first case, that may well be true. In the second case, it is clearly not true.
Let me make another point which will certainly get me vilified, but which I think is important to make: while in the first case, the blame is squarely on the perpetrator and does not attach to the victim, in the second case the victim surely shares a part of the responsibility, if only for establishing reasonable expectations in her boyfriend’s mind.
So if degrees of culpability vary widely from case to case, how are we to establish an appropriate sentence in each case? Easy. We appoint people called “Judges”, and let them decide.
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