Ed Miliband decided today to devote five of his six questions to the Prime Minister to an attack on Ken Clarke and a demand that Clarke resign over some comments on rape. It should be noted that Ken Clarke is a much more liberal and indeed left wing person than Ed Miliband. It should also be noted that Miliband is joining in an ativistic Mail and Telegraph campaign against Clarke’s attempt to move the justice system away from revenge and towards reform and rehabilitation – but that Miliband has managed to do so on a subject which brings far left and far right together in knee jerk reaction.
Those on the left who agree that we should aim to reform and rehabilitate murderers like the celebrated Jimmy Boyle, suddenly froth at the mouth with the far right when it comes to treatment of rapists.
If I say that some murders are worse than others or some assaults or robberies are worse than others, nobody will disagree. That is not to say they are not all very bad; but it is to say that there is a qualitative difference within the same category in different instances. That there are aggravating and mitigating factors, has been recognised by the law for centuries. Rape is no different. It is very horrible indeed – as bad as being stabbed repeatedly, if you want me to think of a crime of similar magnitude. But to claim every rape is equally bad as every other rape is to move into the realms of mysticism, to view the act not as a crime but as some sort of religious profanation. It is not. It is a crime like stabbing somebody – very serious indeed, but a crime.
The existence of mitigation or aggravation is recognised in the fact that lengths of sentences for the same crime vary. A wife who, in the passion of an argument with her husband, picks up a knife and stabs him, has done something very bad. But is it as bad as someone who with premeditation takes a knife, lurks in bushes and jumps out and stabs a stranger? Does society need to be protected from one as much as from the other? No, plainly not.
Equally, it is true that a boy who with his girlfriend moves, without her consent, from frottage to insertion, when he fails to control his passion, has done something very bad. But is it qualitatively every bit as bad as the rapist who with premeditation hides in the bushes to jump out and attack a stranger? No, plainly not. Or at least, if you wish to claim it is, you have to claim the stabbing cases given above have no qualitative difference either. Doubtless some witless protagonist will claim that I am saying the first case is OK. I am not. I am saying it is very bad. But I am saying the second is even worse.
Anybody who stabs someone or rapes someone deserves real punishment. But are all cases of rape or stabbing identical in quality? The notion is absurd. And the fact that a girl aged 16 years and one day is guilty of rape if she sleeps with her boyfriend age 15 years and 364 days is irrefutable proof of that (a point Clarke appeared to get slightly tongue muddled as he made it, talking of two 17 year olds).
Rape is much in the news lately, what with this, and the cases of Dominique Strauss Khan and Juilan Assange. The allegations against Assange, even if true, would not amount to rape in this country as they do not seem to involve the use of force or non-consensual sex. They are, frankly, very strange indeed, and given that rape trials in Sweded are held in secret and with no jury, I do not in the least blame him for fighting extradition tooth and nail.
The allegations against Dominique Strauss Kahn are of a different order as they do seem to involve violent assault and non-consensual sex acts. Plainly there is a very serious case to answer, especially given his known highly charged sexual history.
But I have been given pause today by learning that the police have amended their accusation to say that they were one and a half hours mistaken in the time that the rape took place. Given that it was reported pretty well immediately, how can there have been this confusion about when it happened? A ten minute mistake would be natural, but one and a half hours wrong in a period of three hours?
The difference is very significant, because the police were alleging that he raped her, then rushed from the hotel to the airport to flee. They now acknowledge as true the defence statement that he actually went to a lunch engagement quite close to the hotel before going to the airport. Given that his alleged hurried running away was a major factor in not granting him bail, this seems to me inportant. I repeat – how on earth could an investigation make such a very fundamental mistake?
My feelings of unease were then increased by US Treasury Secretary Tim Geithner coming out to lead international demands for DSK’s replacement – as the prosecuting authority, surely it would behove the US government to shut up until he has been found innocent or guilty? Since then I have been listening to Ghanaian radio (I am in Accra) where callers are more or less unanimous that as the woman is from Guinea, in Francophone Africa, the Sarkozy connection is to blame. That fact is certainly a boon for conspiracy theorists.
DSK deserves the benefit of the presumption of innocence for now. We just don’t know what happened yet. The failure to grant him bail appears to me completely unjustifiable – where on earth do they think he will vanish, and how? There seems something peculiarly vindictive in the handling of this – of which his bail appearance without being allowed clean clothes or a shave was a stark symbol. Ed Miliband would doubtless approve. I wonder what populist right wing nonsense he is thinking up for next week.