Rape is rape, Ken Clarke | Jane Martinson

By using words such as 'serious' and 'forcible', the justice minister feeds the belief some rapes aren't really rape at all

Has anyone ever heard of trivial and consensual rape? No, me neither.

Yet the justice minister, Ken Clarke, suggests that only some violent rapes are "serious" and it's "unwilling" women who make them so.

By using words such as "serious" and "forcible" for only some rapes in one tetchy four-minute radio interview, the most senior legal politician in the country underlines all that is wrong about rape and the criminal justice system in this country. He did it again in another interview on Sky when he talked about "serious, proper" rape cases, although he has subsequently stated that all rape is a serious crime amid calls for his resignation.

To understand this, just imagine Clarke saying similar things about murder or other kinds of assault. Few politicians or lawyers talk about murder victims asking for it or of assaults that aren't violent or indeed serious. His comments feed into the belief that women who report rape are lying, that reporting a rape is relatively easy and that some rapes aren't really rapes at all but, I don't know, kinky sex?

So let's start by saying that rape, penetration without consent, is always serious, no matter how much force or violence is used. It is a crime and should be treated like one. The sex offences review in 2004 ruled out separate offences such "she-was-going-to-and-then-she-changed-her-mind rape" or the "she-was-wearing-a-short-skirt rape" because, according to Rape Crisis, who get to deal with the ramifications of this crime more than most of us, "Rape is rape regardless of the relationship or the context".

Clarke, who, as he told Victoria Derbyshire on her 5 Live show on Wednesday, has presided over a fair few rape trials in his time, should know this. The babbling on about underage sex didn't really help. Using Clarke's scenario, 15-year-olds are being raped by their not-much-older boyfriends because they're too young to give their consent. We're still waiting for the statistics on the number of teenagers who subsequently go to the police to press rape charges if what they are doing is having happy, consensual – if under the age of consent – sex.

Any sympathy with Clarke's proposals on reducing sentences for criminals who plead guilty – and I have some – will be lost in the sense that misconceptions about sexual violence, which mostly occurs between two people who know each other, is alive and kicking at the heart of government. His desire to improve justice by reducing sentences in rape cases is wrongheaded. Not because it puts cost-cutting above locking up more criminals and therefore outrages the Daily Mail, but because they do little to help the victims of a system that is itself dysfunctional.

In the same interview, Clarke mentioned the "ordeal" of women who report rape three times, saying that encouraging men to plead guilty as early as possible could reduce that ordeal. The problem with these proposals is that they allow leniency for the criminals – and, yes, the average sentence for rapists is five years, Mr Clarke, so some could be free in under a year – while doing nothing to deal with what makes it such an ordeal in the first place.

An adversarial court system is a hideous place for any traumatised and damaged assault victim. Is it any wonder, when the cross-examining and character assassinations are added to the forensic examinations by doctors and the suspicions that they wanted sex all along, that a vast majority of rapes – 95% according to the Department of Health – are never reported in the first place.

The fact that some 6% of reported cases actually result in a conviction on a charge of rape – is a disgrace. Conviction rates once formal charges are brought are higher – 59% in 2009 – but most of these pleaded guilty. Far fewer are found guilty by a jury, again underlining the difficulty of her-word-against-his trials.

So guilty pleas do result in convictions, but how many women would go through the "ordeal" only to know that the aggressor could be out in just over a year? Why should the criminal benefit from the horrors they inflicted once they report the crime?

What's more, in changing the rules like this for rape, it is downgrading it as a crime to that of burglary and other crimes against property. This isn't justice, it's further victimisation.

Instead of what could have been a good and useful debate about the criminal justice system and sentencing, Clarke's comments highlight the fact that rape is regarded as a different kind of crime to other assaults. Ed Miliband was one of many calling for the justice secretary's dismissal today. Whether he remains in place or not, what needs reforming is the attitude to rape that his words convey.

Below the line: Jane Martinson responds to some of your comments here, here and here


Jane Martinson

The GuardianTramp

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