Posts Tagged ‘ sentencing ’

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 In fact, even if there was consent to the penetration but consent is withdrawn, everything else should be withdrawn too…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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Prison, Blue Skies and a Desert Island…

Desert Island Discs is not where I expected my inspiration to come from for my next blog post. Yet, listening to the inspiring Dame Anne Owers on the show last friday, I was struck by something she said about why we put people in prison:

If we think about it more deeply, what kind of example do we want to model to people whose own behaviour have often been seriously deficient? Do we want them to come out of prison thinking that if you have power over people then you can use it to make them feel humiliated? Or do we want to put before them a different way of behaving? That’s not about being nice, it’s about making demands, it’s about challenging and it’s about trying to change people.

Listening to her reminded me of an idea that’s been at the back of my mind for a while: when it comes to crime and how it is being dealt with within society, no one seems to be thinking outside the box. Most of the ideas floating about in the debate on crime are just slightly different versions of the system that we have now: responsibility if you do something wrong, punishment for having done something wrong, prison as a form of punishment, and more punishment if necessary further down the line…

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The murder of a Ugandan activist, the trial of a teenage girl in London and leaflets outside a mosque in Derby… On the face of it, these three stories don’t seem to have much in common.

But when you look more closely at the circumstances of each of them, it’s a different story altogether…

In Uganda, a man was beaten to death with a hammer in front of his doorstep. What would be a gruesome murder anyway takes a different dimension when you know that the victim, David Kato, was an activist campaigning for gay rights in Uganda, and who had become famous after he sued a paper for outing him.

In London, a teenage girl was sentenced for the manslaughter of a 62 year-old man, along with her boyfriend. The incident happened in central London on a Friday night after the two had been drinking and the girl shouted at the man that he was a ‘fucking faggot’ before they attacked him. They were both convicted of manslaughter, and she was sentenced to an extra year in prison because the court decided the attack was homophobic.

In Derby, men were in court last week over leaflets they distributed outside their local mosque. An innocent enough activity, except for the fact that the leaflets were entitled “The death penalty?”  and called for the execution of homosexuals. They were charged with inciting hatred on the grounds of sexual orientation and will be tried next week by Derby’s Magistrates’ Court.

The link is hopefully (and sadly) obvious by now, and the interesting question in relation to the criminal law is this: how does the criminal law deal with intolerant and homophobic people?

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Charge !!

On the 11th January, Edward Woollard was convicted of violent disorder and sentenced to 32 months in prison for throwing a fire extinguisher from the top of a building during the student protests. The reactions to the decision were many and passionate, generally in relation to the judges’ admission that by sentencing Mr Woollard he was hoping to “send[…] out a very clear message to anyone minded to behave in this way that an offence of this seriousness will not be tolerated.

It is not the subject of this blog, or at least not of this particular blog post, to discuss the length of the sentence, which is by and large within the range of the offence for which Mr Woollard was sentenced, or whether it was appropriate.

Another question which was raised, and which is more closely related to the subject of this post, is whether or not Mr Woollard should have been judged for attempted murder rather than violent disorder, as was called for before his arrest by a senior police officer.

From a legal perspective, the issue that I want to discuss in this post is in relation to what offence he was accused of and why…

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