Rape law: did Ken Clarke have a point?

Now that the frenzy over Conservative justice secretary Ken Clarke’s comments on rape is subsiding, a consensus is emerging – encouraged most vigorously by Ken Clarke himself – on what happened last week. It seems it was a ‘media brouhaha’ over Clarke’s rather innocuous, if clumsily phrased, comment during an interview on BBC Radio Five Live last Wednesday that all rapes are serious, but some rapes are more serious than others. Anybody who thought they heard him say that some rapes are not serious has been characterised as hysterical, if not daft. Is this an accurate account of the story? Well, only up to a point.

Certainly, one strand in what Clarke was saying was simply that, before setting the appropriate sentence for every crime short of murder, judges take into account all the circumstances of the offence, mitigating and aggravating. As many commentators have pointed out, you have to work very hard to see anything contentious or offensive in pointing out that rape follows the same pattern here: different incidents of rape attract different sentences. But if we go back to the original interview, Clarke seemed to be saying something more interesting and challenging than that.

This was a discussion of Clarke’s proposals to increase the discount for offenders who plead guilty at the earliest opportunity. The interviewer, Victoria Derbyshire, was making the point that this would result in rapists serving very little time in prison. She put it to Clarke that the sentence handed out for rape was ‘five years on average’, meaning that some rapes attract sentences of less than five years. Clarke’s reply was to suggest that this was because of ‘date rape’. As if this wasn’t enough of a gaffe, he explained a little later on that ‘date rapes can sometimes be very confusing’.

In context, it seemed that Clarke was not just saying that some rapes are more serious than others, but that some rapes are not all that serious and rightly attract a reasonably short prison sentence. It turns out that commentators were quite right to point out that, in his references to ‘serious rape’ and much else besides, Clarke did seem to suggest that some rapes are not that serious.

Understood in this way, it is not so astonishing that a senior politician’s off-the-cuff radio remarks could bring serious calls for his resignation within the hour. Even in a climate where there is an ever-extending list of ‘things that must not be said’, saying that not all rapes are serious is near the top of that list. This is but an extreme example of a very familiar pattern. What marks out this case is that Ken Clarke may have had a point.

Rape has been statutorily defined as sex without consent since 1976, but what counts as ‘without consent’ was significantly widened by the 2003 Sexual Offences Act, section 74 of which provides that a woman consents only if she ‘agrees by choice, with freedom and capacity to make that choice’. The motivation behind this was to introduce a version of ‘affirmative consent’, so that there needs to be actual agreement not just the absence of disagreement. In concrete terms, this means that ‘going along with’ sexual intercourse can, on the face of the law, count as rape. Likewise, a drunk woman lying back and not offering resistance or objection is, according to the letter of the law, insufficient to count as consent.

This legal reform has changed rape from a rare and aberrant crime to an occurrence that is – though not ideal – certainly commonplace. While rape reformers have been fervent in their insistence that rape is both extremely common and unbelievably heinous, this involves walking such a tightrope that it is inevitable that occasionally someone like Ken Clarke will fall off.

Of course, this does not mean that every drunken infringement ends up in court, let alone a conviction: rape reformers have highlighted the ways in which juries’ reluctance to convict in what Clarke described as the ‘very confusing’ cases leads some of the more ambiguous scenarios to be filtered out. Accordingly, Ken Clarke may not have spoken accurately on average sentences for rape – and he certainly misspoke on the issue of underage sex, which is not counted as rape under the 2003 schema. (His struggle to explain the average was in any case a bit of a red herring, since it emerged later in the interview that Victoria Derbyshire was confusing averages with sentencing guidelines.)

But accuracy aside, this dog’s dinner of an interview contained a much more interesting ‘gaffe’ than the retrospective whitewashing has suggested. What it reveals is that even lawyers and politicians feel a degree of discomfort with the stretching that the term ‘rape’ has received, both culturally and legally. As long as the law remains out of step with what Clarke called the ‘ordinary conversational sense’ of what rape means, then there will plenty more ‘gaffes’ like this in the future.

Helen Reece is a reader in law at the London School of Economics.