David Allen Green

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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

15 comments

Jonathen's picture

Mr Clarke has not apologised for his remarks in general, but he has written to a victim of attempted rape, who also featured on the show, saying: "I have always believed that all rape is extremely serious, and must be treated as such.

Leftygreg's picture

People claiming that it's okay because the Tories would have done it too are completely missing the point.

Barny's picture

EM may be crap anyway but you are plain wrong on this. Clarke's comments exemplified many things that are wrong with men's attitudes to rape and sexual assault. This shouldn't be dismissed as a party political thing...

Steve Jones's picture

There surely must be a word for the art of practising politics through mere avoidance of language pratfalls.

Ed's picture

I'm sorry, but for the Justice Secretary to be so flippant when describing rape is unacceptable. There may well be some overreaction and indeed, there could also now be a problem with debating rape sentencing seriously but that has come about through the carelessness of no one but Ken Clarke.

quiet riot girl's picture

Dave's legal blogger friend Gaijin-San also said many people consider rape to be 'the most heinous' crime there is.

This kind of hyperbole does not help the discussion and neither does calling Ed Milliband's behaviour 'disgusting'. It is just politics. You know who capitalises most on the ideological meanings of rape? Feminists. Who is calling them 'disgusting'?

Luke's picture

I don't think Miliband's attack on Clarke at PMQs was a personal one - distasteful perhaps, but give me a politician who wouldn't want to hoof one into an open goal? Miliband managed to make the Tories look soft on crime. Judging by the reaction of the rightwing press today, I'd bet a pound or two that KC will be lucky to survive the reshuffle. Takes the heat out of Lansley anyhow.

Matt's picture

@Steve Jones: Yes: "politics"

Brian's picture

I agree entirely with that blog post. Miliband has now placed himself in alliance with the right wing press and in opposition to criminal justice reforms that Labour should be supporting. It is a long-term strategic cost for an opportunistic, dubious, short-term gain.

Bodmass's picture

That "his blunder was inadvertent", may be your view of what happened on Radio 5. The fact that he doubled down on it on Sky with his "proper rape" comment leads me to think otherwise.

This is a point of his attitude and should be seen as separate from the actual issue of sentencing policy.

It's unfortunate that the two issues have become conflated, including in this post.

Bren Tierney's picture

Milliband will go down in the annals of UK parliamentary lore as being first and foremost a jobbing opportunist - when it's not AV, it's other personal "once in a life time opportunity to damage Clegg and the Liberals" type prognostications.

The man's a poltroon. And, he'll never be a Labour prime minister - even his own party know that he's merely a holding-pattern caretaker leader whilst they lick their post-Brown rejection wounds after the last general election.

PB's picture

Whilst Ed demonstrates his lack of integrity and jumps on the opportunist bandwagon... and Cameron demonstrates a lack of spine by failing to back his man... what about Clegg? Come on Clegg, grow a pair, denounce this circus and repeat what Clarke was trying to say.. only be less offensive with it.

nicktheowl's picture

I'm worried that it won't just make discussions on rape policy and sentencing more difficult. The emphasis on the "50% reduction for rapists who plead guilty" will call into question the whole "liberal" criminal justice policy which Clarke has been promoting, and which is one of the only things this rotten and arrogant government has done to its credit since it was elected. Sack Ken and it'll be stone dead. We'll have lost the best chance for many years of bringing some sense to the benighted and broken criminal justice system.

skiptonman's picture

Good article Mr Green. Mr Clarke was on the whole not guilty of anything as bad as the aggressive and opportunistic radio presenter or various MP`s who only want to inflame or point score constantly.

Susan O'Keeffe's picture

"But his blunder was at least inadvertent... "

So that's all right then?

Well, I don't think so.

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