Ken Clarkes Comments Do Indict Victims of Rape But Not As You Thought

Ken Clarke's blusterings on rape this week have been a fixation of the liberal (sometimes) intelligentsia in the new media.

Ken Clarke's comments came under scrutiny because he allegedly stated that some offences of rape was less serious than others. In fact, my learned friend @neilmonnery put up a rather good blog article on the reactionary responses to headline news. In short, the reaction was an overreaction which failed to take into account the legal, legislative and sentencing details of the offence of rape and varying degrees in which it can occur.

I would like to point out that here I'm not in any way justifying rapists or mitigating situation that lead to such offences.

Wider Context

However, while we can examine the current legislative state for rape, the statistics appear to only tell a small amount of the story. As Baroness Stern's review of rape in February 2010 identified;

It is estimated that only 10% of rapes are actually reported.

Of these, a defendant enters a guilty plea at an early enough stage will result in a plea to bargain which reduces the offence to sexual assault.

Therefore, there is a significantly distressing wider context in which Ken Clarke's comments can be applied.

If indeed Clarke's comments seek to persuade people to plead guilty, then the offender has a significant chance of any charge of rape being reduced by the Crown Prosecution Service to a charge of sexual assault, a lesser offence which carries a subsequent lesser sentence and therefore would, in theory allow the offender to go out and commit the same offence again. This is of course whether he is raping a man or a woman.

This is a far more distressing issue for victims and potential victims of rape and one that should be taken into serious consideration when examining Ken Clarke's statements.

While, and as Neil Monnery states, a judge has the discretion to decide the length of sentence based on the merits of the case, therefore if the man pleads guilty committed aggravated rape with a weapon, he is still likely to receive a substantial punitive sentence; An offender that does not get before a judge prior to the offence being committed is unlikely to receive a similarly punitive sentence.

At what point did we warrant Crown Prosecution Service lawyers the right to decide whether or not someone should be tried for rape on the basis of meeting their targets systems?

Especially, when one takes into account that only 10% of rapes are ever reported. We are therefore in theory potentially allowing this public service body to reduce the amount of prosecutions and therefore reduce the amount of "reported" rapes to less than 7%.

Sociocultural Issues

As a final thought, there needs to be a significant shift in cultural and social approaches to rape. It was a bone of contention when studying feminism and law, and many people examine jury's responses, normally along the lines of a Melanie Phillips response to women that "asking for it", and the subsequent vindication of a victim by finding a defendant not guilty.

This is largely what the "Slut Walk" is attempting to combat, albeit in unconventional and inappropriate manner. One can only hope that as generations mature there will be a significant cultural shift in acceptability of female and male behaviour that does not concede victimisation.

The Slut Walk : Some Thoughts

The Slut Walk has bounced into the world of the internet as the latest outrage at perceptions of guilty victims in rape cases.

The premise that women are "asking for it" is once again being challenged by a rising youth population in America, a genuine civil liberty protest movement challenging ubiquitous concepts around rape and responsibility.

I do not like the name. But the principle is sound.

The name is intending to present an interesting reverse psychology message in marketing, with banners proclaiming "I'm a slut, don't assault me" which, I imagine, are intended to continue allowing women to dress as they wish without the perjorative associations of becoming deserving victims.

The principle of the march is founded in these misconceptions around rape and sexual assault, but it seems to avoid one of the main issues in this misconception. That the female body is available for display and should be treated as an asset in the social exchange.

It is a reactionary movement that responds to one issue in a myriad of misconceptions and capitalistic understanding of female eroticism, and perhaps these challenges could take a lot from also seeking to prevent such exploitation of women in the first place, therefore challenging the status quo that women are objects for desire and assault.

Police Justifying Rape through Intelligence Gathering

Apparently the Police are "allowed" to have sex with activists if they are undercover.

The Guardian reports;

"Sex was a tool to help officers blend in, the officer claimed, and was widely used as a technique to glean intelligence."

Espionage by Police Officers is a popular topic as demonstrations and activism is on the rise.

However, this can constitute criminal offences.

Rape is sexual intercourse without consent, as per the Sexual Offences Act 1956. This is reasonably straightforward.

However, case law has significantly developed premises around consent. This is developed into the term "rape by fraud".

Rape by Fraud is presumed where the male conducting the penetration has misled the male or female, who would not have consented had the truth been known.

Defined by sections 75 and 76 of The Sexual Offences Act 2003 clearly identify that procuring sexual activity by misleading the victim is rape; "the defendant intentionally deceived the complainant as to the nature or purpose of the relevant act".

Even if one were to introduce the premis that the lie must cause the victim harm, in the instance of Police Officers masquerading as activists, this would create a chain of causation that would harm the victim.

Therefore, it appears, Police Officers are outside of the law with regards to rape.

In fact, it seems, they are actively encouraged to commit rape in order to obtain evidence.

This is simply diabolical.

But naturally, with Coulson in the news, little will be done.

The police officer who spoke to the Guardian will get some nice Gardening Leave and the superiors will deny this ever took place.

In the mean time, people embracing politicalll activism, standing up for their beliefs, clearly deserve to become victims of crime?

And we call this a democracy?

EDIT: Much debate has been had over this article and I wish to clarify;
A man may lie to a woman and tell her he is a Doctor, when in fact he is a janitor.

However, this lie may not prevent her from consenting, had she known the truth.

But a man lying about being a police officer, to an activist, when he seeks to obtain information and potentially arrest her, may well have caused her to remove consent. As indeed the Guardian Article goes on to illustrate.

Did You Read it? Did You react? But Did You Act?

Misogyny in political fringe groups is apparently well and strong, detailed by the Evening Standard here

These myths, that women instigate domestic violence, that feminism is a "nazi style" institution and that rape by someone you know is simply sex, are just some of the abominable issues that help perpetuate female submission in society.

There are a plethora of government investments in advertising and classes to help women recognise domestic violence.

Yet at no point are they investing in telling people violence is not acceptable.

Feminism as a "nazi style" phenomena is one women have been fighting since the second wave feminism of the 1960s. The term feminism has become synonymous with "shaven haired, hairy armpitted lesbian" and blogs of this thought help perpetuate the myth.

Even in University, people were reluctant to call themselves "feminists", prefering the less perjorative term "equalists" or similar.

As a result, we are now raising women who believe they should be "sexy", they should base a career around having babies, and their ideal ambition is to be an "it girl" or "wag" who shops and projects "sex" as a marketable product.

Then, of course, we wonder why people do not complain when they are raped, or consider it acceptable to be struck by a man, or think that their lives are second class.

We live in a society that should have evolved beyond patriarchy. We have had many thrusts towards acheiving equality, but the negative press and colloquial network has now expanded to the blogosphere to continue to perpetuate myths and representation of gender.

I complain if someone calls me "chick", or "sweetpea" or any other derrogative femine term. And it takes courage to stand up to the image of you they then project, of an aggressive woman with no sense of humour.

The constant drip drip drip of rightwing media streams has set gender equality back another generation, and this blog demonstrates another strand to the BNP who were pretty low in the pile anyway.

But is anyone listening? With their sexist jokes and indirect discrimination of women? Or do they read this and say "oh, that's terrible" and then sit on a jury who aquits a man of rape because his victim was drunk?

Do the public read it reviled, yet not complain when they are referred to in terms of gender typecasting ("oh, it's her time of the month" et al).

I could link to a hundred blogs that rant in similar terms, so here is my tuppence worth.

Rape Victims Suffer Another Blow

I'm completely aghast, almost rendered speechless, by a Court's decision to find men not guilty of rape due to a woman's fantasies.

The entire system of justice for rape victims is wholly undermined by this one judgement.

The finer details of the case are currently unavailable, but from the BBC and Bolton News the synopsis is that the woman in question mentioned on MSN chat logs that she would consider multiple sexual relations with strangers.

She met the principle offender on the Internet and agreed to meet him. When she arrived he had friends with him.

"She alleged she wanted to just have sex with him, but was then raped by the others. " (BBC)

So, apparently having fantasies, or speculating about casual sex SUPERCEDES saying NO?

Or perhaps it is reasonable to infer if a woman is prepared to have sex with one man, then she must be willing to have sex with ALL men?

The legislation on Rape is seemingly clear cut. Penetration without consent.

The victim asserted she did not consent.

As far as I am concerned, the evidence she had discussed fantasies is irrelevant. The fantasies were abotu group sex, not about "rape" fantasies.

Therefore section 1 (3) of the Sexual Offences Act 1976 cannot be interpreted as the victim had mentioned she would be willing to have group sex, so her consent was undermined.

For years women have campaigned against social perceptions of "asking for it", against conceptions that men are entitled to Conjugal rights (see R v R 1991, authority for a husband to commit rape on his wife), and there has been legislation in place to rpevent defence lawyers exploiting a woman's sexual history as an exccuse for a man raping her (Criminal Justice Act 2003(s14) Bad Character).

But in the past decade these rights of women have been slowly erroded by case law in the UK.

Societal myths have not been challenged when women are considered liable for rape if they are drunk.

Statistics on rape are terrifying enough when a woman does not have to worry that speculation of fantasies may feature.

The victim is likely to be shamed into not appealing and this law will stand.

Anyone speculating about casual sex now ought to be aware that although their sexual partners can only be mentioned if similar fact evidence (see above), their conversations can be submitted to infer things that simply are not true.

Lateral Applications of the Law (part two)

In one day we have seen a shift in common law that could bear dramatic implications on criminal law in this country.

The conviction of a paedophile without identifying the victim could negate the rights of victims.

If you can prosecute a man for rape when there is no identifiable victim, can you prosecute anyone without a victim? If two blokes have a drunken scuffle and get caught on cctv can they both be prosecuted without the other's consent for abh?

What about the implications of consent? If someone films a "rape fantasy" with his girlfriend and it is seized by police, can they prosecute him for rape?
[I know consent is a tentative issue with the new Criminal Justice Act and redefinitions of pornogrphy but this goes further]

How about if the victim comes forward? There cannot be a retrial. She can never get recompnse.

to make all crimes victimless is a frightening prospect,trial by jury requires both sides of the story, not some clever barristers and a confession.

[This is a bit left wing for me, but i believe in the maintenance of justice, and there is the potential here for justice to lose the basis of it's creation]

Perturbing Rape Issues continues

This caught my eye this morning on a bank holiday liberation of ploughing through all the blogs I don't get time to read.

"Of these untested kits, at least 1,218 are from unsolved cases in which the attacker was a stranger to the victim."

The implication is that the rape is more heinous crime if the victim is attacked by someone who is a stranger, further propelling the myths of date rape and (in UK) "Kaitimaki" rape - that the woman asked for it because she knew the man etc and perpetuates the use of "bad character" evidence.

It is abysmal in this day and age the patriarchal states still maintain a hold over women sexually.

Oddly Victoria Derbyshire is discussing rape in the UK this morning as well. A lovely theme for a four day holiday.

This has in turn sparked off a debate about women making sacrifices to elevate themselves to high level jobs versus child care. Bring it on!