Ed Miliband decided today to devote five of his six questions to the Prime Minister to an attack on Ken Clarke and a demand that Clarke resign over some comments on rape. It should be noted that Ken Clarke is a much more liberal and indeed left wing person than Ed Miliband. It should also be noted that Miliband is joining in an ativistic Mail and Telegraph campaign against Clarke’s attempt to move the justice system away from revenge and towards reform and rehabilitation – but that Miliband has managed to do so on a subject which brings far left and far right together in knee jerk reaction.
Those on the left who agree that we should aim to reform and rehabilitate murderers like the celebrated Jimmy Boyle, suddenly froth at the mouth with the far right when it comes to treatment of rapists.
If I say that some murders are worse than others or some assaults or robberies are worse than others, nobody will disagree. That is not to say they are not all very bad; but it is to say that there is a qualitative difference within the same category in different instances. That there are aggravating and mitigating factors, has been recognised by the law for centuries. Rape is no different. It is very horrible indeed – as bad as being stabbed repeatedly, if you want me to think of a crime of similar magnitude. But to claim every rape is equally bad as every other rape is to move into the realms of mysticism, to view the act not as a crime but as some sort of religious profanation. It is not. It is a crime like stabbing somebody – very serious indeed, but a crime.
The existence of mitigation or aggravation is recognised in the fact that lengths of sentences for the same crime vary. A wife who, in the passion of an argument with her husband, picks up a knife and stabs him, has done something very bad. But is it as bad as someone who with premeditation takes a knife, lurks in bushes and jumps out and stabs a stranger? Does society need to be protected from one as much as from the other? No, plainly not.
Equally, it is true that a boy who with his girlfriend moves, without her consent, from frottage to insertion, when he fails to control his passion, has done something very bad. But is it qualitatively every bit as bad as the rapist who with premeditation hides in the bushes to jump out and attack a stranger? No, plainly not. Or at least, if you wish to claim it is, you have to claim the stabbing cases given above have no qualitative difference either. Doubtless some witless protagonist will claim that I am saying the first case is OK. I am not. I am saying it is very bad. But I am saying the second is even worse.
Anybody who stabs someone or rapes someone deserves real punishment. But are all cases of rape or stabbing identical in quality? The notion is absurd. And the fact that a girl aged 16 years and one day is guilty of rape if she sleeps with her boyfriend age 15 years and 364 days is irrefutable proof of that (a point Clarke appeared to get slightly tongue muddled as he made it, talking of two 17 year olds).
Rape is much in the news lately, what with this, and the cases of Dominique Strauss Khan and Juilan Assange. The allegations against Assange, even if true, would not amount to rape in this country as they do not seem to involve the use of force or non-consensual sex. They are, frankly, very strange indeed, and given that rape trials in Sweded are held in secret and with no jury, I do not in the least blame him for fighting extradition tooth and nail.
The allegations against Dominique Strauss Kahn are of a different order as they do seem to involve violent assault and non-consensual sex acts. Plainly there is a very serious case to answer, especially given his known highly charged sexual history.
But I have been given pause today by learning that the police have amended their accusation to say that they were one and a half hours mistaken in the time that the rape took place. Given that it was reported pretty well immediately, how can there have been this confusion about when it happened? A ten minute mistake would be natural, but one and a half hours wrong in a period of three hours?
The difference is very significant, because the police were alleging that he raped her, then rushed from the hotel to the airport to flee. They now acknowledge as true the defence statement that he actually went to a lunch engagement quite close to the hotel before going to the airport. Given that his alleged hurried running away was a major factor in not granting him bail, this seems to me inportant. I repeat – how on earth could an investigation make such a very fundamental mistake?
My feelings of unease were then increased by US Treasury Secretary Tim Geithner coming out to lead international demands for DSK’s replacement – as the prosecuting authority, surely it would behove the US government to shut up until he has been found innocent or guilty? Since then I have been listening to Ghanaian radio (I am in Accra) where callers are more or less unanimous that as the woman is from Guinea, in Francophone Africa, the Sarkozy connection is to blame. That fact is certainly a boon for conspiracy theorists.
DSK deserves the benefit of the presumption of innocence for now. We just don’t know what happened yet. The failure to grant him bail appears to me completely unjustifiable – where on earth do they think he will vanish, and how? There seems something peculiarly vindictive in the handling of this – of which his bail appearance without being allowed clean clothes or a shave was a stark symbol. Ed Miliband would doubtless approve. I wonder what populist right wing nonsense he is thinking up for next week.
From what I have read I am not sure that Ken Clarke did anything wrong. He acknowledged, for instance, that date rape can be as serious as any other kind of rape, but said that from his long experience as a lawyer, he had learned that it all depends on the circumstances, which is exactly what I would think from my experience as a social worker.
For this reason I feel a little uneasy at Craig’s suggestion that a stabbing or a rape in the bushes is worse than one in the home. It might be, but it might not.
Rapes or stabbings in the home might be part of a long campaign of intimidation.
But I don’t disagree with you at all – I do not intend to suggest that an attack in the home is always less horrible than an attack outdoors. I give a very specific couple of examples.
Richard
Under english law no one under 16 can consent to sex with anyone over or under 16 and without consent it is rape.
Under UK law everyone gets a presumption of innocence and is entitled to bail unless the custody Sergeant remands due to fail to appear, or interfere with witnesses or justice or for own protection. This would be argued in court and become court bail if charged.
The onus is on the court and police to grant bail. A high profile man such as him with no previous convictions and of presumably previous good character should not have an issue getting bail as should Assange. I have vast experience of far more unsavoury characters being bailed from police and court. And iff you have ever seen Dog the Bounty Hunter they also do this in America regularly with large bail bonds. This is a political decision not to bail for fear of embarrassment should he flee. Not a judicial decision. Assange and his rediculous bail conditions are another example. If someone is remanded in custody it is seen as a presumption of guilt by jurors so a conviction is far more likely. As for degrees of rape I am with Craig. Rape is a crime like all others that has a profound effect on some and little effect on others. Some people move on quickly putting it behind them and some are damaged for life. This is similar for burglary victims robbery victims or assault or murder victims. To say all rapes are equal is political correct nonsense. A girl consenting to sex at 15 with her 17 year old boyfriend is rape. She cant consent so she is raped she is mature and enjoyed the act with a loving partner. The brutal part was dragging her to Court and making her feel guilty. So police dont do that he would probaly get a caution. A prostitute who wants a male to stop because his money has run out he feels he is short changed and continues for a few strokes that is rape as consent is withdrawn. She is pissed off as she feels she has been cheated out of more money. This is still rape she was probably damaged long long ago and I totally agree that she has a absolute right to say no at any stage. But this is a little different to a man who waits in a park and beats and forces his penis in a poor girl walking alone minding her own business probably physicaly hurting her and emotionally crippling her. The rape law recognises this already differntiating between under 13 yr old over 13 year old etc etc with different sentences already. I dont know why we are all arguing? All rape is wrong but we must not get all emotional about certain crimes I have experienced an elderly woman who was burgled in her home. Not hurt or even confronted but the worry and shock of the whole thind forced her not to leave the house and she stopped eating with worry and eventually died. All crime is bad and saying some is worse than others just excuses the “lesser” crimes. Will we hear a defence lawyer say. Well my client did seriously GBH the victim but he didnt rape her!
Trial by media, conjecture and blogs. Not only will it be hard to find a jury, this thread is also puntuated by finger pointing.
France is not the only nation to shelter its nationals from international justice. Once the US is recongising the ICC and is prepared to let its soldiers stand trial for the misdemeanors rapes and murders they committed on European soil, then I shall take notice of their hand wringing and fingerpointing. Can’t understand why Yugo even mentioned it, because any soldier committing a crime or murder is extradited within 24 hours, unless they are already in custody.
I’m no fan of the Conservative Party, but Ken Clarke has been smeared appallingly all for choosing the “wrong crime” to illustrate sentencing policy and processes.
As you said, no-one can possibly disagree that all crimes, no matter how serious the crime is in and of itself, have varying degrees of seriousness. Rape is no different, and in certain respects it is a very good example around which to have precisely the sentencing policy discussion which is needed.
On Ken Clarke: I have yet to see a transcript of what he actually said at the moment he caused the furore. The nearest I saw yesterday seemed to be wide open to interpretation and the meaning could be changed according to how it was punctuated, which of course is not available in the spoken word. Given KC’s normally somewhat rambling style he’s often wide open to this sort of criticism. but the media are not falling over themselves to declare clearly what he atually said. Even the BBC (who I think were doing the original interview) did not put the clip and a transcript up on the screen for the main news.
But in a wider context I think that after the tory successes in the polls, David Cameron’s strings are being jerked by some sections of the press just to remind him who’s running the show. The McCann business last week was chapter 1 (perhaps even pre-planned) this is an opportunity not to be missed for chapter 2. Give DC a sharp reminder, damage a leftish cabinet member, beat the alpha-male chest a bit – what’s not to like?
Equally, it is true that a boy who with his girlfriend moves, without her consent, from frottage to insertion, when he fails to control his passion, has done something very bad. But is it qualitatively every bit as bad as the rapist who with premeditation hides in the bushes to jump out and attack a stranger? No, plainly not.
That is not plain at all. Many women (including myself) feel that the first example is worse. The physical damage is likely to be greater in the second example, but the psychological damage caused by the betrayal of trust in the first example is likely to be longer-lasting and more difficult to live with. I have personally experienced an attempted date rape, clearly not premeditated, with the only physical injuries being mildly bruised arms. I have also been threatened with a knife and violently mugged by a stranger who followed me from the Tube, grabbed me by the neck from behind in a dark alley, and eventually left me with facial injuries that took two years to heal fully. Despite the physical reminders of the mugging and the fact that I walk past the place where it happened every day, I ceased to think much about it within a matter of weeks. The attempted rape, on the other hand, left me suicidal for several months and unable to react calmly to an unexpected touch for over ten years. It remains far more vivid in my mind than the mugging.
Jennie Rigg also has a good post (and poll) on this topic today at http://miss-s-b.dreamwidth.org/1152957.html.
Lizw,
Thank you, and I am sorry to hear of those experiences. The psychological trauma inflicted on the vitctim is indeed an important measure. But it is not the sole measure, andintent, premeditation, extent of violence and use of a weapon are examples of other factors.
In the example I gave, the man stabbed by his wife in an argument might well be severely psychologically traumatised by the fact his wife stabbed him, just as in your own real life example. But I would still give that wife a lesser sentence than I would give the armed man who set out with premeditated intent to attack. And I suspect, if you think about it, so would you.
The transcript of what Clarke said is here:
http://www.bbc.co.uk/news/uk-politics-13444770
Two things strike and shock me. First the rambling style of KC (but we knew that already), but second the mischief-making of the interviewer. Despicable.
The misses just pointed out something else that’s a bit odd – since DSK was leaving that day, why would a chambermaid have been cleaning the room before he left? Surely the hotel would await his departure, then service the room. Barging into an occupied room without notice – particularly a room costing thousands of dollars a night – is pretty unlikely. It’s hard to imagine a chambermaid accidentally discovering a guest walking out of a shower, because staff simply would not put themselves in that position.
Rape has become a political crime; therefore men accused are becoming victims also:
.
http://jimmygiro.blogspot.com/2011/03/happy-mothers-day.html
‘Being a long-time regular of a place also doesn’t discount rape either.’
If, as seems to be the case, the IMF or DSK had an arrangement with the Sofitel to use the same luxury suite whenever DSK was in NYC on business, the false allegation/entrapment conspiracy theory gains a certain plausibility. One of the chambermaids on the rota for servicing the suite could certainly be ‘got at’ by whichever faction of the PWB one thinks would want DSK’s career ended.
‘(I am in Accra) where callers are more or less unanimous that as the woman is from Guinea, in Francophone Africa, the Sarkozy connection is to blame.’
If the chambermaid-accuser is a visa-overstayer, and the hotel’s management knows this, that would of course make her amenable to pressure exerted on her by the devisers of the false allegation/entrapment scenario. It is certainly not unknown on this side of the pond for the hotel sector to be ‘flexible’ when it comes to employing illegal immigrants, especially in housekeeping teams.
Alternatively, DSK is just a randy old goat who is guilty as charged and who thought he was invincible, courtesy of his long standing membership of both the French political elite, and the banking overclass.
Morgan Kelly in The Irish Times, 7th May:
…”Ireland’s Last Stand began less shambolically than you might expect. The IMF, which believes that lenders should pay for their stupidity before it has to reach into its pocket, presented the Irish with a plan to haircut €30 billion of unguaranteed bonds by two-thirds on average. Lenihan was overjoyed, according to a source who was there, telling the IMF team: “You are Ireland’s salvation.”
The deal was torpedoed from an unexpected direction. At a conference call with the G7 finance ministers, the haircut was vetoed by US treasury secretary Timothy Geithner who, as his payment of $13 billion from government-owned AIG to Goldman Sachs showed, believes that bankers take priority over taxpayers. The only one to speak up for the Irish was UK chancellor George Osborne, but Geithner, as always, got his way. An instructive, if painful, lesson in the extent of US soft power, and in who our friends really are.”
http://www.irishtimes.com/newspaper/opinion/2011/0507/1224296372123.html
I totally agree with your (and Ken Clarke's) comments about the degree of severity of rape. It's pure common sense (for the reasons you mention). The trouble of course is that if you even dare to suggest this, it is taken as somehow condoning rape and feminists, together with others who don't want to appear to be male chauvinists, will jump all over you. However much one explains that this is in no way diminishing the crime, it seems that one will not be heard.
Another problem is that in the present climate it is now really only people who have little public image and nothing much to lose who can even dare to suggest that Ken was right, and such people are unlikely to get much of a platform on which to do it. A bit of a vicious circle.
Reading this again perhaps makes it sound like I am saying that you have little public image! That was not my intention, and no disparagement was intended. Perhaps it's better to say 'only those who are sufficiently courageous . . . . '.
DSK is entitled to the presumption of innocence and will surely get it, but he doesn't "deserve" it, just on your sayso, any more than anyone else who is charged with an offence "deserves" to be thought of as innocent before a trial. What DSK actually deserves in terms of how people think of him is a matter for the jury to decide when they are in possession of all the relevant facts.
Are you seriously arguing, Craig, that if DSK knew he was going to be arrested he would have stayed around to do that lunch?
I don't know why he stayed around in New York for that lunch and neither do you.
I do know that his actions were not the actions of a man who believed that ON THAT DAY he would ever be arrested or charged with anything and certainly not the actions of a man who believed he would be taken off a plane, arrested, charged, put in segregated custody in one of the toughest prisons in the world, be required to put up $1m bail, then tagged and put under house arest and be forced to resign from one of the most powerful jobs in the world and say goodbye to his political and professional career.
Believing that you are above the law, that you will never be arrested or held to account for your alleged actions, especially not on the same day, is not the same thing as the belief of an innocent man, although I accept that you believe it is and that DSK himself will argue that it is.