Posts Tagged ‘ Ken Clarke ’

The F word.

An interview between Jeremy Paxman and Boris Johnson is always entertaining, the former a mildly sarcastic chastising headmaster to the latter’s cheeky schoolboy, but their little number reached new heights of randomness last week.

Sick vs Broken, Camera vs Riots

Newsnight had managed to corner the mayor of London the day after his own speech and before David Cameron’s big address to the Tory Conference, and Paxman brought up the issue of the riots and whether – I paraphrase – Johnson disagreed with ‘Dave’ about the fact that it showed society was in some way ‘broken’. Wary of being caught out in disagreement with his beloved leader, Johnson then launched into a bizarre argument about the meaning of ‘sick’ vs ‘broken’, which culminated in Johnson pointing out to the BBC camera in front of him and the fact that it might be ‘sick’ (the exact diagnosis remained unclear to the audience) but was still functioning and not broken. (full interview here)

So the mayor of London, city where most of the violence and disorder took place in August, manages to answer a question about a very serious issue by comparing the riots to a scuff on the underside of a camera. It’d be fairly amusing if it wasn’t so depressing.

Well, it might be the lawyer in me, but I believe that words matter. They matter in everyday life, but even more so when you are trying to control things with them, as the law does when defining contracts, crimes or constitutions. And because we are now in an age of constant news coverage, they also matter as soon as they come out of a politician’s mouth (or preferably before, but you can’t expect too much I guess…).

Comparing the riots and their impact and role in our society to a malfunctioning camera might seem innocuous in the context of the interview, but it trivialises a very important issue, from a man who arguably already took a little too long to realise their importance…

It’d be easy to dismiss this “playground” argument as just that, but it is just one of many examples of ‘soundbites’ regarding the riots, from the prime minister’s dismissive diagnosis of society ‘being sick’ to Ian Duncan-Smith’s focus on ‘gangs’ and the need to ‘find a way out’, rather than fix things where they are. Using soundbites instead of policy is bad enough as even Tony Blair, soundbiter extraordinaire, has acknowledged, but there is another darker side to this.

“Feral Underclass”

One word that seems to have cropped up regularly since the riots is ‘feral’. Often it was used in sensational headlines or in live interviews in the heat of the moment, but it finally caught my attention properly when I read Ken Clarke’s article in the Guardian about a month ago. In the article, the Lord Chancellor talks about the failure of incarceration when dealing with offenders, a laudable and interesting point, especially from a Tory minister. But despite some of the positive things said in that article, the opening paragraphs of the article rankled in my mind for a while after I’d finished reading it and I realised that, more than the often flawed arguments used by the Lord Chancellor, one word in particular was still bothering me: ‘feral‘.

And so I did what any good lawyer will do when in doubt: go and check what the law says. In this case, the law was a dictionary, and it told me that feral was an adjective meaning:

in a wild state , especially after escape from captivity or domestication (especially of an animal).

A feral person is therefore someone that escaped some sort of ‘domestication’ and returned to a wild, uncontrollable state. They are also, somehow, of an animal nature, and as friend pointed out a couple of weeks ago, the most common way to deal with feral animals is to terminate them when they represent a threat. These implications attached to the word ‘feral’, especially in association with the riots, are only compounded by the fact that the exact words of Mr Clarke referred to a ‘feral underclass’. Not only are they wild and out of the control of their ‘captor’, but they are also inferior (this is just based on the literal meaning of underclass. Inferior to what or whom is open to debate…)

As a politician and lawyer, Mr Clarke should know that whatever message he was trying to put across, it will be overshadowed by the use of that adjective and the words surrounding it. I’m sure, and indeed I hope, that Mr Clarke would deny having any such intention when he wrote his article but it barely matters. Words are what remain, black and white on the pages of a newspaper, on a computer screen and sometimes, tragically, in the mind the mind of members of this so-called ‘feral underclass’…

Home, Reasonable Home?

If I was slightly more cynical, I would almost be tempted to believe that all the fuss and repeated gaffes over the Legal Aid and Sentencing Bill was a way to distract from the massive and dangerous cuts to the legal aid system.

First, the ‘rape might not always be as serious as other types of rape’ non-debate, then the accidental publication of the bill on Tuesday morning, and the expected U-turn on the 50% sentence reduction for early guilty plea. And just in case that wasn’t enough to catch one’s attention and make our collective heads spin, David Cameron then stepped up to provide some distraction, in the popular and populist form of “Grrrr! Look at me I’m tough and not at all soft” posturing. Or, as John Humphrys elegantly put it this morning, “willy-waving”.

(the video link is here – apologies for unwanted and scarring mental images…) 

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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…

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Dumbed Down Debating

The real winner of this week’s latest fracas controversy debate on rape is probably the BBC and the producers of BBC Question Time. The programme obviously hit the jackpot when Ken Clarke put his foot in it, two days before the show was to be recorded at Wormwood Scrubs prison. In fact, in these conspiratorial times, it’s enough to make you wonder if Ms Derbyshire wasn’t purposefully trying to trick the Justice Secretary…

In any case, the show made for interesting, if somewhat confusing viewing. Interesting that, to the left of the master of ceremony, Shami Chakrabarti of Liberty was siding with Ken Clarke, while to the right New Labour’s justice tsar Jack Straw was cosying up to Melanie Phillips of the Daily Mail. Funny and confusing days we live in… I mean, how is one supposed to know who to shout at?

After the inevitable re-affirmation of the week’s most popular truism that rape is, indeed, rape, the questions and the answers started getting infuriating moronic interesting. In particular, Ms Phillips’ cry for criminals, and rapists in particular, to serve their ‘whole sentence’ signalled a turn for the worse. Continue reading

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