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19 May 2011

Clarke and rape sentencing: one day later

Why Miliband's opportunism was just as disgusting.

By David Allen Green

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.

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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