Defending Ken

Warning: This is going to be long, and serious. My intention is to examine the frankly infuriating way in which Ken Clarke's interview on BBC 5 Live yesterday morning has been reported, and more importantly how (in my not remotely humble opinion) it has been misquoted, misrepresented and latched on to by a number of different (but all self-serving) individuals and groups.

Everyone has their opinion, and an awful lot of people have already aired their views, either on telly or radio, or in the press, or by blogging or tweeting. I get the sense that a lot of these people haven't bothered actually to listen to or read exactly what it was he said. So, because I have nothing better to do, and in the safe and certain knowledge that no one will read this anyway, I'm going to break it down (not in the style of MC Hammer, I'm afraid). What follows are extracts from the BBC transcript of Ken Clarke's interview, verbatim. If you have a life I'd get on with that rather than wade through this, but if you are interested - read on. I'll be referring to Clarke as KC and Victoria Derbyshire, the interviewer, as VD (not the ideal initials, particularly given the subject matter, but what can you do?).

KC: Most people don't realise you get a discount for pleading guilty. And until you think about it you wonder "Why do you do that?" when he's actually done it. Now rape is actually the strongest example in my opinion of why you do it. Somebody who stops messing about, stops accusing the people accusing him of being liars, stops a great long trial, relieves the victim and the witness of going through the whole ordeal again and being called a liar - that's why we give a discount. That's why we have always given a discount. We still have far too many people who don't plead guilty in the first place. And it, you know, wastes police time, and costs money and all the other things. But the thing that's most compelling with me is, just, we will give you credit if you put your hands up, stop messing about and don't make things worse for the victim. And in the case of rape, I can't think of a better example. If you plead guilty...

I think all of this is sensible - don't you?

VD: (interrupts) Have you met women who've been raped?

Sorry, but what the fuck has this got to do with anything? Really? He is trying to explain why criminals who plead guilty early in the process get a discount on their jail sentence. Why ask if he's met women who have been raped if she isn't pursuing an agenda? 

KC: I've taken part in rape trials. I was a lawyer, sort of, yes I've met women who've been raped.

VD: And have you put this idea to women who've been raped?

KC: No I haven't put this idea to women who've been raped because I haven't met one recently. My experience of rape trials….

VD: Wouldn't it have been…it was a long time ago….

KC: ...is that the trial…Contested rape…

VD: ...which was a long time ago…

So fucking what? It's more experience of rape trials than she has had. 

KC: What I think happens is that the woman finds that another ordeal is now being imposed upon her. The woman's already distressed and traumatised enough by the rape finds she's now in a witness box, in front of a jury, the lawyer accusing her of lying, going over the whole thing again.

Valid point, no? Clarke is by no means trivialising the ordeal of being raped - quite the opposite. 

VD: Under your plans that woman could find… that woman could find the rapist back on her street in a year and a bit. It's an insult to her isn't it?

This is a hypothetical woman we're talking about, remember. She doesn't actually exist. Yet Derbyshire is suggesting to Clarke and to the audience that he is actually insulting her. Actually insulting a hypothetical woman, who DOES NOT EXIST. 

KC: The rapist is going to be….very light sentence for a…a year and a bit?

VD: Yes. A rapist gets five years.

KC: Rapists don't get… rapists get more than that.

VD: Hang on a minute. Five years on average, yes they do Mr Clarke, yes they do.

KC: That includes date rape, 17-year-olds having intercourse with 15-year-olds.

Listening to the interview, it seems clear that Clarke is not saying date rape and 17 year olds having sex with 15 year olds is the same thing. He has, however, gone wrong here as while having consensual sex with a girl under 16 (and older than 13) while a criminal offence, is, under the Sexual Offences Act 2003, no longer classified as rape. This is, of course, a technicality but it does serve to undermine his point that the five-year average sentence encompasses "all rape convictions".

This next bit is where it all starts to go properly wrong for Clarke. He doesn't really think it through.

KC: Serious rape, I don't think many judges give five years for a forcible rape, the tariff is longer than that. And a serious rape where, you know, violence and an unwilling woman, the tariff's much longer than that. Secondly, half way through they are released but they are released on licence so they're still supervised. They can be recalled if they do anything wrong on licence - all this 'they're let out after half the time' which is… really right I didn't introduce that but that's where we are, but it is subject to licence and subject to recall. So they are the idea is at that stage you're trying to stop them doing it again and eventually they will finish the sentence and they're let out.

It's his use of the phrase "serious rape" that has been latched on to by those who are demanding his resignation/sacking. It could be construed that he considers there to be a type of rape that is not serious. I strongly doubt this is actually the case, but it is a massive open goal for anyone looking for an excuse to have a go at him.

VD: If I had been raped why would I be encouraged to go to the police when I know full well that the rapist could get just over a year in jail. Why would I put myself through the trauma, the examinations, the hell of it, when he might be out in 15 months?

Oh, I dunno. Possibly because if you don't go to the police, the rapist won't get any time in jail at all? And if you want to know why a rape victim might be discouraged to go to the police, it could be because they've heard rampant bullshit from the likes of you, trying to convince her that the perpetrator won't go to prison for very long... Just a thought.

KC: Well, I must stop you repeating this total nonsense…assuming you and I are talking about rape in the ordinary conversational sense. Some man has forcefully, with a bit of violence...

VD: Rape is rape, with respect.

KC: No it's not, and if an 18-year-old has sex with a 15-year-old and she's perfectly willing, that is rape. That's 'cause she's underage, she can't consent. Anybody has sex with a 15-year-old, it's rape.

Not true. Clarke, as Justice Minister, probably ought to know this, frankly. 

KC: So what you and I are talking about, we're talking about a man forcibly having sex with a woman and she doesn't want to. That is rape. Serious crime, of course it's a serious crime. 

Let's stop here and consider, in I hope not too salacious a way, how different offences of rape could attract different sentences. I'd just like to put in on record that I consider anyone who forces themselves on a woman for any reason is an odious little fucker who deserves to be subjected to the full force of the law. I am no apologist for rapists, of any description, but I do agree with Clarke that there is not just one "sort" of rape. 

Consider: a man goes out at night, carrying a knife, dressed in dark clothing and making deliberate attempts to conceal his identity. He follows a woman from a train station or bus stop, waits until he is confident of not being observed, and attacks her, using the knife to threaten her with injury, and forcefully and completely against her will has sex with her.

Compare this to a man who goes to a bar, carrying on his person some sort of drug which he intends to use to sedate or otherwise chemically influence a woman, for the purposes of having sex with her. He selects a victim, drugs her, takes her to some private place and, in the certain knowledge that she does not consent, has sex with her.

Compare this again to a man who goes to a party, meets a woman, they both get drunk but she much more so than he, and they end up having sex to which he wrongly thinks she consents. He may or may not have had doubts as to her consent at the time.

All of these are rapes, without question, but are they all deserving of the same jail sentence? I don't think so, Clarke doesn't think so, and I suspect most people, giving it due consideration, also don't think so.

But to listen to or read the torrent of approbation, condemnation and in some cases vicious bile poured forth in the media, you'd think that Clarke had actually suggested that unless violence is used in the perpetration of a rape, it's not a serious offence. He has very clearly said no such thing, or even a thing which, in a certain light could be reasonably mistaken for such a thing. Yet we've got Milliband demanding, like a petulant schoolboy demanding his pocket money, for Clarke to be sacked. We've got otherwise seemingly sensible journalists completely ignoring the facts and making out that Clarke is an apologist for rapists, and we've got people on Twitter casually stating that they hope he himself is raped, or that because he is posh and a Tory that he thinks rape victims are all responsible for their ordeals. It's insane.

I find it deeply worrying that it seems impossible to have a debate about any serious issue in this country without it immediately descending to mindless, knee-jerk tabloid-fed reactionism. 

If anyone is actually reading this, I'd be interested to know your thoughts. Comments below.