labelling rape...seriously
In 1992, the name Lavinia Kerwick permeated the Irish public's consciousness. She was the first rape victim to waive her right to anonymity in order to publicly express her outrage and distress at a judicial decision, which saw the man convicted of violently raping her, walk free from court. His sentence was initially adjourned for a year and he was subsequently given a nine year suspended sentence. Lavinia who was 18 at the time had been going out with her boyfriend for 5 months when he violently raped and beat her . She was unable to walk for three months afterwards, she had severe bruising all over her body, she developed anorexia nervosa and made a number of suicide attempts in the aftermath of her ordeal. In 1996 Lavinia stated; "I despise my body. It reminds me of what happened. Life is too painful to endure." She felt intimidated by her rapist who lived and worked nearby, and also by his supporters. Eventually she was forced to leave the area she grew up in.
When Kenneth Clarke, the British Secretary for Justice gave an interview for BBC5 Live on 18th May, scarcely could he have imagined the furore his words would have caused. Clarke was speaking about proposals to introduce increased discounts for guilty pleas and used rape cases as an example of why this might be appropriate. His belief was, that a guilty plea would save the victim the ordeal of being re-traumatised by a court case and being brandished 'a liar'. Unfortunately any constructive discussion on the merits or otherwise of his suggestions, were scuppered by what I can only describe as an ill-prepared, ill-advised and ultimately clumsy discussion by Clarke on the 'seriousness' of rape.
Clarke attempted to categorise rape in degrees of seriousness. To reinforce his assertion that this methodology could be applied to rape cases, he used the examples of date rape and statutory rape. Despite his background as a trial lawyer and his current portfolio as Justice Secretary, Clarke made a fundamental error by using the terms 'statutory' and 'date' rape interchangeably. Clarke - on average sentencing rates: "That includes date rape, 17 year olds having intercourse with 15 year olds"... "A serious rape with violence and an unwilling woman - the tariff is longer than that." Clarke later admitted he had confused 'date rape' with, 'sex with a willing but underage girl'.
Staturory rape is where there has been unlawful sexual contact with someone under the age of 17. The Dublin Rape Crisis Centre in their 2006 submission to the Law Reform Commission recommended that consensual sexual intercourse between minors aged between 14 - 17, where there is no intimidation or coercion, and the age difference is no more than two years, should not be considered an offence. Ken Clarke had a similar view but struggled to articulate it.
Date rape was a term coined in the early 1980s to describe forced sexual intercourse by a man on a woman during a date. The term became more synonymous with the use of certain drugs such as rohypnol and GHB, which renders a victim incapable of recognising or resisting an unwanted sexual contact.
Kevin Myers in his Irish Independent column weighed in behind Clarke and his comments that some rapes are more serious than others. He blamed the feminist meme for preventing any discourse on the subject of women and violence. He also blamed the interviewer, whom he referred to as a meme stooge, for the 'travesty' of an interview. What was really offensive was his assertion that this meme, "will compel news-desks to find some unfortunate woman who has been traumatised by date rape...". If Myers does not realise that all rape is traumatic then he has no business commenting on it in the first place. Approximately 30% of all rapes are committed by an intimate partner or ex-partner. Date rape in itself does not preclude the use of extra physical violence, and to depict it as so is misleading and damaging. The psychological and emotional outcomes for many women who have experienced rape without added violence is often no better than those that have. It appears that many women internalise the widely held view, that it wasn't rape if she didn't fight her attacker off.
Was there some merit in what Clarke said? Is it not true that some rapes are more serious than others? Doesn't murder have degrees of unlawfulness. e.g., murder and manslaughter? This is true, but there is at least one main difference between a murder trial and a rape trial. In the former it is usually an indisputable fact, that an unlawful death has occurred. The onus is on the prosecution to prove that the defendant was guilty of said crime, and what the degree of intent and pre-meditation was. In rape trials a crime cannot be established to have taken place until the defendant is proved guilty. Nothing is established before a rape trial and the defence is operating on the basis that no crime has been committed in the first place.
But surely all rapes cannot be deserving of the same sentence, a rape that involves no added violence cannot be comparable to being violently gang-raped? So how should degrees of 'seriousness' be categorised? Labelling rape according to context can lead to victim blaming. Date rape may imply the victim "was asking for it" or "should have known what to expect".
If rape is described as sexual intercourse without consent, then force must have occurred. The use of force or coercion is a violent act. In terms of sentencing there should be a baseline sentence for a conviction of rape. After that, extra time should be added on to reflect the nature of the crime, i.e. multiple rapes, multiple perpetrators, physical violence and threats, use of a weapon, abduction, etc..
Perhaps it is possible to categorise the severity of rape cases more definitively, in order to make sentencing of convicted rapists more transparent and just. I believe that Clarke's and Myers's error was to assume that labelling rape cases according to context automatically implied that one type was worse than the other. Rape is rape, and certain individual cases of rape are more violent, more life threatening and more psychologically damaging...just ask Lavinia Kerwick.
When Kenneth Clarke, the British Secretary for Justice gave an interview for BBC5 Live on 18th May, scarcely could he have imagined the furore his words would have caused. Clarke was speaking about proposals to introduce increased discounts for guilty pleas and used rape cases as an example of why this might be appropriate. His belief was, that a guilty plea would save the victim the ordeal of being re-traumatised by a court case and being brandished 'a liar'. Unfortunately any constructive discussion on the merits or otherwise of his suggestions, were scuppered by what I can only describe as an ill-prepared, ill-advised and ultimately clumsy discussion by Clarke on the 'seriousness' of rape.
Clarke attempted to categorise rape in degrees of seriousness. To reinforce his assertion that this methodology could be applied to rape cases, he used the examples of date rape and statutory rape. Despite his background as a trial lawyer and his current portfolio as Justice Secretary, Clarke made a fundamental error by using the terms 'statutory' and 'date' rape interchangeably. Clarke - on average sentencing rates: "That includes date rape, 17 year olds having intercourse with 15 year olds"... "A serious rape with violence and an unwilling woman - the tariff is longer than that." Clarke later admitted he had confused 'date rape' with, 'sex with a willing but underage girl'.
Staturory rape is where there has been unlawful sexual contact with someone under the age of 17. The Dublin Rape Crisis Centre in their 2006 submission to the Law Reform Commission recommended that consensual sexual intercourse between minors aged between 14 - 17, where there is no intimidation or coercion, and the age difference is no more than two years, should not be considered an offence. Ken Clarke had a similar view but struggled to articulate it.
Date rape was a term coined in the early 1980s to describe forced sexual intercourse by a man on a woman during a date. The term became more synonymous with the use of certain drugs such as rohypnol and GHB, which renders a victim incapable of recognising or resisting an unwanted sexual contact.
Kevin Myers in his Irish Independent column weighed in behind Clarke and his comments that some rapes are more serious than others. He blamed the feminist meme for preventing any discourse on the subject of women and violence. He also blamed the interviewer, whom he referred to as a meme stooge, for the 'travesty' of an interview. What was really offensive was his assertion that this meme, "will compel news-desks to find some unfortunate woman who has been traumatised by date rape...". If Myers does not realise that all rape is traumatic then he has no business commenting on it in the first place. Approximately 30% of all rapes are committed by an intimate partner or ex-partner. Date rape in itself does not preclude the use of extra physical violence, and to depict it as so is misleading and damaging. The psychological and emotional outcomes for many women who have experienced rape without added violence is often no better than those that have. It appears that many women internalise the widely held view, that it wasn't rape if she didn't fight her attacker off.
Was there some merit in what Clarke said? Is it not true that some rapes are more serious than others? Doesn't murder have degrees of unlawfulness. e.g., murder and manslaughter? This is true, but there is at least one main difference between a murder trial and a rape trial. In the former it is usually an indisputable fact, that an unlawful death has occurred. The onus is on the prosecution to prove that the defendant was guilty of said crime, and what the degree of intent and pre-meditation was. In rape trials a crime cannot be established to have taken place until the defendant is proved guilty. Nothing is established before a rape trial and the defence is operating on the basis that no crime has been committed in the first place.
But surely all rapes cannot be deserving of the same sentence, a rape that involves no added violence cannot be comparable to being violently gang-raped? So how should degrees of 'seriousness' be categorised? Labelling rape according to context can lead to victim blaming. Date rape may imply the victim "was asking for it" or "should have known what to expect".
If rape is described as sexual intercourse without consent, then force must have occurred. The use of force or coercion is a violent act. In terms of sentencing there should be a baseline sentence for a conviction of rape. After that, extra time should be added on to reflect the nature of the crime, i.e. multiple rapes, multiple perpetrators, physical violence and threats, use of a weapon, abduction, etc..
Perhaps it is possible to categorise the severity of rape cases more definitively, in order to make sentencing of convicted rapists more transparent and just. I believe that Clarke's and Myers's error was to assume that labelling rape cases according to context automatically implied that one type was worse than the other. Rape is rape, and certain individual cases of rape are more violent, more life threatening and more psychologically damaging...just ask Lavinia Kerwick.