Andrew Lilico: What Clarke got wrong, and what he got right

1) Is halving the sentences of those that confess to rape a good idea?  Probably not.  A better idea would be to increase the discretion judges have in sentencing.

2) The policy proposed aims to increase the conviction rate for rape.  But is the key to increasing the percentage of rape allegations leading to convictions to increase the number of convictions?  No.  It is to reduce the number of allegations.  The view of the police is that a very high percentage - probably most - of the rape allegations made are false.  They are made by women who have sex they regret, or have had a row with their boyfriend and want to hurt him, or are covering up infidelity, or have been turned down and seek revenge.  The most famous false rape allegation was made by Potiphar's wife against Joseph, and the damage done by false allegations - both to the lives of the men falsely accused and also to the difficulties women that have indeed been raped find in convincing juries - continues to be great today.

3) Is is true that "rape is rape"?  No. Ken Clarke is obviously, obviously correct, both in a general sense and in respect of the specific technical sentencing aspect.  If you are a 22 year old man, and you had sex with a girl you had every reason to believe was 18, after you met her at a party, but it turns out she's 15, you are guilty of rape - and quite rightly so.  But that isn't the same as if you were turned down by the girl, leapt on her as she left the party, beat her up and raped her.  It's not.  Everyone knows it's not.

Again, if she was 18, and you were getting on well, but she got rather hammered, indeed so badly drunk that she was unable to be consenting, and you took her upstairs and had sex with her anyway, that's rape - and quite rightly so.  But it still isn't the same as if she had ditched you early in the evening, you got drunk yourself, and you jumped on her as she left the party, beat her up and raped her.  It's not, and everyone knows it's not.

Furthermore, as well as everyone knowing it's not - indeed, as Clarke said, most people wouldn't even refer to these two technical forms as "rape" at all in the conversational sense of the term (most people reading today's newspaper headlines probably don't even know that it's a rape for a 15 year-old to have sex with a 12 year-old if he honestly, and on the basis of good evidence, believes she is above 15) -  as, for example, in a 2005 case.*  The courts do not treat these cases the same for sentencing purposes, as Clarke again pointed out - and quite rightly so.

We need to focus on Clarke's real error here - the probably-flawed policy.  To focus on what he got right - that not all rapes are the same - is to cloud the issue.

*Text amended at 13.45.