Justice Minister Kenneth Clarke and “normal” rape

I should start this by saying I have known three women who were raped.

I have worked with two; and a girlfriend of mine had been raped in her early teens.

I may be biased because I think Labour leader Ed Miliband is a twat, but I’m more disgusted with him trying to make political capital out of rape than with Justice Minister Kenneth Clarke’s comments on rape sentencing – at least from the relevant excerpts I’ve heard and seen of what Ken Clarke actually said – as opposed to what he is implied to have said.

What seems to have happened is that he was defending government plea-bargaining proposals which would offer a 50 per cent reduction in sentences (instead of the current one third reduction in sentences) in return for an early guilty plea for various serious offences including rape.

When challenged about the seemingly low average sentence for rape at the moment, Clarke mentioned that the average includes cases which involve teenagers having consensual sex with each other if the girl is under 16. The example he gave was of an 18 year old boy having sex with his consenting 15 year old girlfriend. Even though she perfectly happily consents, that is legally rape because she is below the age of consent… but that specific boy is likely (quite rightly, I think) to get a lower sentence than some Neanderthal scumbag guilty of what most people would think of as what Clarke called “serious rape, with violence and an unwilling woman”.

I think he is quite right that most people would accept a boy of 16 years and 1 month having sex with a consenting girlfriend of 15 years and 11 months should get a lesser sentence for rape than what people would think of as a ‘normal’ case of a man raping a woman… because it is a ‘different’ type of rape.

The fact that the use of the words ‘normal’ and ‘different’ can be twisted and misconstrued by quoting that sentence out of context exemplify how difficult it is to talk about rape.

Ken Clarke also foolishly said something along the lines that date rape cases can be “complicated” though, indeed, they can be. And he is right that average sentences (which is what he was being asked about) are affected by individual case circumstances because some cases deserve longer sentences than others. In that sense, there are, indeed, ‘different types’ of rape deserving different lengths of sentence. It is not that some cases are less serious but that some cases are nastier.

I asked a female friend about this and she thought that, perhaps, a teenager having consensual sex with a girl under 16 could be legally called something other than “rape”: perhaps ‘unlawful sex’. But it would be very difficult to draft that into Parliamentary legislation because how could you possibly separate a 45 year-old man preying on a 10 year-old girl from a 16 year-old having consensual sex with his 15 year-old girlfriend?

At what point would it change over from a crime of “unlawful sex” to the much worse “rape”? Is the sex performed by a 17 or 25 year-old less predatory than that performed by a 35 or 45 year-old? And at what point is “consensual” relevant? 15? 14? Parliament has decided 16 is the cut-off point. I think in most states in the US it is 18. In Italy, it is much more complicated, as the Silvio Berlusconi case (which I blogged about three months ago) shows.

It is almost impossible to legislate for ‘different types’ of unlawful sex.

But the sight and sound of Labour politicians trying to make political capital out of a very serious matter – trying to score sixth form public school Debating Society type points off each other – is an unedifying spectacle. Far moreso than Ken Clarke making a valid point.

On the other hand, I’m not sure it is particularly edifying to have the government give accused people 17% lower sentences (50% instead of 33%) if they plead guilty early… just to save money.

I’m also not clear if, under the proposals, people would get a 50% reduction for pleading guilty plus the normal (I think it’s) 50% time off for good behaviour… That would mean someone facing a 16 year sentence would get an 8 year sentence and be out in 4 years with good behaviour… a 75% reduction in sentence.

The English legal system: Justice reduced to the level of The X Factor and Britain’s Got Talent

I have to do jury service next month. That should be interesting.

The basis of the English legal system is that the accused is guilty unless he can (afford to) prove himself innocent. The police investigate a case and find the person they believe (or claim) is guilty. The state’s prosecution system then decides if there is enough evidence to convict and, if there is – ie if the defendant is presumed to be guilty – then the accused person is prosecuted on the basis that they are guilty. The state pays for a prosecution lawyer whose job is to get a guilty verdict; if he/she spots anything that may imply innocence, it is his/her paid job to prevent it being presented to the court.

Under the English legal system, the prosecutor is paid to mislead the court on the evidence, to hide evidence which may prove the innocence of the defendant and to prevent the Defence from presenting any evidence which will reveal anything which may show the innocence of the defendant. That is his paid job. The defence lawyer is paid by the defendant himself/herself to get an innocent verdict and to hide anything which might show or imply guilt.

The jury’s job is not to investigate the facts nor to decide if the accused is guilty or innocent. Their job is to decide which of the two well-paid lawyers present a better case. The object is to vote on whether the defender or prosecutor is better on style, content and presentation, much like competitive Ice Skating but without the numbered cards you hold up. It is justice reduced to The X Factor or Britain’s Got Talent.

I remember a case in which a jury member spent his spare time going to the crime scene and talking to witnesses outside the court. The judge threw him off the jury and told him it was not his duty as a jury member to investigate the case but to decide a verdict only on the evidence presented. I think the jury member was threatened with Contempt of Court.

The lawyers who present the case? They have spent about seven years in an academic institution being trained in the art of legal lying, falsification of evidence and misleading the court. Which is why politicians like Tony Blair and Bill Clinton are often ex-lawyers. They were highly-trained as liars.

The result of all this? Lots of guilty people escape conviction and lots of innocent people get imprisoned, sometimes for decades.

There is also the fact of widespread police corruption across the UK.

On 27th September 1998, the Sunday Telegraph revealed in an article written by Geoffrey Seed and Alasdair Palmer that it had obtained “the minutes of a meeting organised by the National Criminal Intelligence Service (NCIS), and attended by 10 of Britain’s most senior officers and policy makers”. The minutes stated that “corrupt officers exist throughout the UK police service” and the NCIS’s Director of Intelligence said that corruption may have reached “Level 2: the situation which occurs in some Third World countries”.

I was once told by Margaret Thatcher’s lawyer that he would never put a Metropolitan Police officer in the dock as a witness unless what he said could be corroborated by another witness: the possibility that the policeman was lying was too great to risk.

The object of the English adversarial system is to win the debate at all costs including justice. Added to this, there is the fact all police evidence must be suspect.

The English courts do not provide justice. They play a game with people’s lives in which innocent defendants are found guilty of crimes they did not commit. This is no accident. It is an inevitable result of the current English legal system which is adversarial not investigative.