Clarke and rape sentencing: one day later

Why Miliband's opportunism was just as disgusting.

Sometimes things can seem different one day later.

The unfortunate and crass comments yesterday of Ken Clarke were bad enough. But there was something repellent in how the Leader of the Opposition and the Conservative Right sought to make immediate political capital of Clarke' difficulties.

And so today, what lingers for many is not so much Clarke's offensive tone and seeming complacency, but Miliband's distasteful opportunism in trying to make rape sentencing something to score points with at Prime Minister's Questions. It must have seemed such a good idea at the time, but it does not today.

As this blog set out yesterday, the Criminal Justice system does treat certain rape cases with more severity than others. This is not exceptional, and indeed it has long been settled sentencing policy. This not to say that rape is not rape, but punishments can and do vary according to the presence of aggravating factors. Indeed, no one seriously seems to think that this should not be how rape sentencing should operate.

And this was certainly not the only legal blog to point out that rape sentencing was more complicated than yesterday's media frenzy suggested: see for example former Tory MP and criminal barrister Jerry Hayes, Labour List blogger Ellie Combo, and my fellow liberal lawyer (and also a criminal barrister) Gaijin-San. The legal blog Beneath the Wig correctly observed that the over-reaction to Clarke's comments may even make rational debate on rape policy more difficult. And, as Brian Barber today observes (again at Labour List), the Labour Party should have been supportive of Clarke, not trying to get him sacked.

All this said, Clarke should not have said what he said, and definitely not in the way he said it. But his blunder was at least inadvertent, and it lacked the deliberation of those in his own party and the opposition who exploited and misrepresented the rape sentencing issue so as to try to get a political opponent sacked.

One day later, it is the cynicism of Miliband and others on this issue that disgusts as much as Clarke's original dreadful remarks.

 

David Allen Green is legal correspondent of the New Statesman

David Allen Green is legal correspondent of the New Statesman and author of the Jack of Kent blog.

His legal journalism has included popularising the Simon Singh libel case and discrediting the Julian Assange myths about his extradition case.  His uncovering of the Nightjack email hack by the Times was described as "masterly analysis" by Lord Justice Leveson.

David is also a solicitor and was successful in the "Twitterjoketrial" appeal at the High Court.

(Nothing on this blog constitutes legal advice.)

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As the strangers approach the bed, I wonder if this could be a moment of great gentleness

I don’t know what to do. In my old T-shirt and M&S pants, I don’t know what to do.

It’s 1.13am on an autumn morning some time towards the end of the 20th century and I’m awake in a vast hotel bed in a small town in the east of England. The mysterious east, with its horizons that seem to stretch further than they should be allowed to stretch by law. I can’t sleep. My asthma is bad and I’m wheezing. The clock I bought for £3 many years earlier ticks my life away with its long, slow music. The street light outside makes the room glow and shimmer.

I can hear footsteps coming down the corridor – some returning drunks, I guess, wrecked on the reef of a night on the town. I gaze at the ceiling, waiting for the footsteps to pass.

They don’t pass. They stop outside my door. I can hear whispering and suppressed laughter. My clock ticks. I hear a key card being presented, then withdrawn. The door opens slowly, creaking like a door on a Radio 4 play might. The whispering susurrates like leaves on a tree.

It’s an odd intrusion, this, as though somebody is clambering into your shirt, taking their time. A hotel room is your space, your personal kingdom. I’ve thrown my socks on the floor and my toothbrush is almost bald in the bathroom even though there’s a new one in my bag because I thought I would be alone in my intimacy.

Two figures enter. A man and a woman make their way towards the bed. In the half-dark, I can recognise the man as the one who checked me in earlier. He says, “It’s all right, there’s nobody in here,” and the woman laughs like he has just told her a joke.

This is a moment. I feel like I’m in a film. It’s not like being burgled because this isn’t my house and I’m sure they don’t mean me any harm. In fact, they mean each other the opposite.

Surely they can hear my clock dripping seconds? Surely they can hear me wheezing?

They approach, closer and closer, towards the bed. The room isn’t huge but it seems to be taking them ages to cross it. I don’t know what to do. In my old T-shirt and M&S pants, I don’t know what to do. I should speak. I should say with authority, “Hey! What do you think you’re doing?” But I don’t.

I could just lie here, as still as a book, and let them get in. It could be a moment of great gentleness, a moment between strangers. I would be like a chubby, wheezing Yorkshire pillow between them. I could be a metaphor for something timeless and unspoken.

They get closer. The woman reaches her hand across the bed and she touches the man’s hand in a gesture of tenderness so fragile that it almost makes me sob.

I sit up and shout, “Bugger off!” and they turn and run, almost knocking my clock from the bedside table. The door crashes shut shakily and the room seems to reverberate.

This article first appeared in the 12 January 2017 issue of the New Statesman, Putin's revenge