Rape Roundup

In the spirit of ‘smartened up debate‘ and before everybody gets sick of talking / reading about it, here are a few points about the non-debate on rape last week and the many issues that were or should have been raised…

Rape is ?

The cause of the whole controversy was Ken Clarke’s comment about what constitutes ‘serious rape’ or ‘rape in the ordinary conversational sense’. This is obviously a very bad choice of words and something the Justice Secretary has rightfully apologised about. After a week of commentators, politicians and journalists worriedly repeating ‘rape is rape’ just in case someone might think they didn’t think that it was, maybe it would be a good idea to remind ourselves what the definition of rape actually is:  

(1) A person (A) commits an offence if—

(a) he intentionally penetrates the vagina, anus or mouth of another person (B) with his penis,

(b) B does not consent to the penetration, and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3) Sections 75 and 76 apply to an offence under this section.

(4) A person guilty of an offence under this section is liable, on conviction on indictment, to imprisonment for life

No ‘jumping from behind a bush’, no ‘victim must be appropriately dressed and reasonably sober’. The only requirements are:

  • A penetration, by a penis, which means that rape can only be committed by a man. Students often perk up at this point and make the ever-incisive comment that ‘what about a man raped by a woman’? What about it indeed? Well, that would be covered by an offence of sexual assault, which is defined in section 3 of the act, though I’m not sure how practically relevant to criminal law a ‘woman on man’ rape really is.
  • The act can be committed against both a man or a woman, and forcing someone to do a blowjob is rape too.
  • There is no consent to the penetration itself. Consenting to dinner / a drink / 10 drinks / a grope / any sexual act does NOT imply consent to the penetration. In fact, even if there was consent to the penetration but consent is withdrawn, everything else should be withdrawn too…
  • Consent is a difficult thing to prove, which is why many rape cases hinge on that particular issue. There are situations where it will be presumed that consent was absent, as was discussed in this blog before.
  • If there is a reasonable belief that there was consent, then it was not rape. The excuse that ‘No means Yes’ will not cut it, it has to be shown that care was taken to find out about consent and that anybody else could have made that mistake.
This is what rape is. However, this is not what Ken Clarke was actually trying to talk about at all…

Sexually Exciting Sentencing

What the Justice Secretary was actually trying to publicise and discuss was the Government’s current consultation on “Effective Punishment, Rehabilitation and Sentencing of Offenders”. The specific proposal at stake here concerns sentence discount for guilty pleas at an early stage:

The sentencing framework has long recognised the benefits of early guilty
pleas in terms both of efficiency and of sparing victims needless worry.
We want to ensure that defendants are encouraged to plead guilty at the
earliest opportunity by reducing the sentence given for an early guilty plea
(the “sentence discount”). We are considering whether this could be
better achieved by introducing a maximum discount of up to 50 per cent
that would be reserved for those who plead guilty at the earliest stage.

Although this proposal would potentially apply to all offences (and the consultation also asks for alternative ways to encourage early guilty pleas), the principal media focus was on rape, because it’s a very important issue and needs to be debated it’s something they are very interested in it added some ‘sexual excitement’ to the story.

Yes, Ken Clarke should probably have been more savvy when preparing his interviews, but not only did Ms Derbyshire (et al) misrepresent what the proposal was really about, she also got her facts and figures wrong. Unfortunately, this is not the only misleading use of facts of figures where rape is concerned…

A war of attrition rates?

One figure that is sure to get mentioned in any discussion about rape, whether at the pub or in Parliament, is that only 6% of rape cases end in conviction. Again, great soundbite, but it is misleading. This 6% figure is what is called the “attrition rate”, which is not a concept used in many other crimes. It refers to the number of rapes that are thought to happen as a starting point, compared to the number of cases that end in a conviction.

An immense majority of rapes are not reported. Of the few that are, not all are prosecuted, for a variety of reasons ranging from the victim’s wishes or possibly lies, to a lack of evidence, or even potentially the death of the accused. Of the cases that are prosecuted and therefore go to court, some will end in a conviction. That number, compared with the number of cases prosecuted, is what is referred to as the “conviction rate” in other crimes.

If you take rape’s “conviction rate”, it compares pretty well with other crimes, at about 60%. This doesn’t mean that things couldn’t and shouldn’t be improved in terms of how the criminal justice system deals with cases of rape and sexual violence in general, but it’s important to get the terms of the problem right.

Which leaves us with that shameful 6% figure. It’s obviously easier to play the blame game, but the biggest issue here does not lie with the courts, but with us, with society in general. The real question is why women and men who are raped feel so unwilling to report it, and is there anything we can do as a society to help that?

Where to now?

As an insightful Question Time participant mentioned last week, the one positive aspect of this whole chain of events, is that we are talking about rape, which in itself is a good thing. Or is it? 

We have made progress over the last few years, with the creation of specialised rape centres, and better policing, as well as political involvement (to an extent). Baroness Stern’s report on rape reporting was insightful and encouraging but it arguably came too late in the political calendar. And after this week’s communication fiasco, the government might think twice before taking a proper bite at that controversial cherry… 

One last thing… 

The one issue that was mentioned by Mr Clarke and does deserve a discussion but has not, so far, been really discussed is that of underage sex… The Justice Secretary used the example of a 17 year old having consensual sex with a 15 year old to illustrate what he considered to be a less serious case of rape. This he was wrong on, not because of the seriousness issue, but because it is not rape at all. 

Consensual sexual activity with a child under 16 is a crime, but only if you are over 18 and you have no reasonable grounds to believe that the child was over 16. So a 17 year old having sex with his 15 year old consenting girlfriend commits no crime, but an 18 year old does… 

Turns out Ken did get something properly wrong after all, that’s a relief… 

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