In May last year, Ken Clarke made headlines with his misguided comments about “serious rape” – the implication being that some rapes are more serious than others. Though there was of course a feminist outcry, many voices also rushed to defend Clarke – all other crimes have a spectrum, what makes rape so special? I want to examine this idea in more detail, but basically: all rape is rape. It is a binary crime. You were either penetrated without consent, or you weren’t. If other crimes happen alongside rape, the punishments for these are added to the sentence. So you can’t compare it to theft – because things of different value get stolen – or assault – because there’s a whole scale to injury and violence. There is no scale to rape. The only crime you can compare it to in this sense, or at least the most obvious one for this analogy, is murder – because someone has either been killed, or they haven’t.
So if there were to be a scale of severity with rape, it would have to be parallel to the murder scale. There are three main things that affect the sentencing at a murder trial: 1) Whether it was on purpose 2) whether it was pre-planned 3) whether it was provoked. There are also considerations like previous offences, and mental stability of the criminal – but I think as these are taken for granted as factors in any crime, it seems unnecessary to go into them.
So here is my breakdown of how these factors apply to rape cases:
1) Whether it was on purpose. You cannot accidentally rape someone. You just can’t. People like to claim it can be unclear whether or not a girl has given consent – this is why we need more communication about sex in society. It should become natural practice to check on every level of intimacy whether it’s ok, even/especially when you’re with a new sexual partner. And non-verbal body language should be pretty obvious too – if the victim is passive, or protesting, then stop. It is, however, not the victim’s job to make sure her attacker knows she hasn’t consented. Whoever you are, if you are engaging in sexual activity, it is your job to check for consent. And I don’t think there’s any other possible excuse for an “accident” – so I think we can exclude this factor from the “rape scale”.
2) Whether it was pre-planned. This is one area that I can imagine being important, though only as linked into “previous offences”. Obviously, someone who has gone out intending to find a victim and rape them is a threat to society and should probably serve a longer jail term. But it’s a pretty grey area – the majority of rapes probably aren’t planned ahead as such, but men are conditioned by the patriarchy to believe they can “take advantage” of women. And, for me, anyone who buys into this mentality is just as dangerous as the madman in the bushes. I don’t have a straightforward answer here – but I’m not sure that matters, because whether or not we decide a scale can be implemented here, it won’t be to do with victim blaming – this is entirely to do with the rapist.
3) Whether it was provoked. This is where there is the most controversy, but let’s go back to the idea of murder. There is the idea of a crime being committed in “a moment of madness” – see my last point. There’s also self-defence – irrelevant here, because there’s no such thing as self-defensive rape. That aside, there is no kind of victim blaming that would hold up in a murder trial. Even in cases where people have killed their lovers out of jealousy or whatever, the murderer still takes blame – “I just lost my temper”. No one says a murder victim deserves what happens. In rape, it is totally different – and it shouldn’t be. We can’t except that anything the victim does counts as provocation – not their clothes, their alcohol consumption, their relationship with the rapist. It is horrific that we do.
The other important thing to note is that in the debate of rape, too much emphasis goes onto what the legal system can do. The legal system isn’t the solution here, not while so many rapists are known by the victim, not while they take place with no witnesses, not while they’re just between two people and his word against hers. Our legal system, innocent until proven guilty, cannot hope to have a high conviction rate in these kind of cases – and we would be undermining justice to expect it to. Society has to focus on rape PREVENTION – this means tackling rape culture head on, making it clear that women NEVER owe men sex, that it is not OK for men to rape women, that women are not victims in charge of their own safety. We need to teach people about consent, about how not to rape.
We’re never going to stop the psycho in the bushes, but 90% of rapes are not the psycho in the bush – and these are the rapes we can stop happening. They’re also the rapes that the legal system is powerless to do anything about.
– Hattie Grünewald