remnants of remnants

British Conservative MEPs are an interesting crowd. They divide, essentially, into two groups. On the one hand there are the old-school Tories, who are personally affable, politically moderate and reasonably realistic about the usefulness of the job they do in the European Parliament. On the other hand there are the modern neocons, who are virulently eurosceptic to the point of isolationist, support George W Bush-style defence and economic policies, deny man-made climate change, and would like to bring back the death penalty and scrap the NHS.

When I worked in politics, my boss used to jokingly refer to this second group as the ‘H block’, since their most vociferous spokespeople were Chris Heaton-Harris, Roger Helmer, and the extraordinary Dan Hannan. (This latter character was in the news last year when he went over to the US and gave interviews, ostensibly as the voice of mainstream Britain, in which he instructed Americans in the evils of our “unpopular” NHS and recommended that they should reject Obama’s healthcare reforms lest they get left with an equally unpopular system. I kid you not.)

Sadly, the H-block has broken up somewhat in recent years, as some of its members have moved on to other things. But Roger Helmer is still there in the European Parliament, standing up for neocon europhobes everywhere. And, unsurprisingly, I have never once agreed with a single one of Mr Helmer’s political pronouncements (plus he was unnecessarily rude to me once in a bar in Strasbourg, which does tend to put one’s back up a little).

But today, to my mild astonishment, I find myself not only agreeing with him, but actively sympathising with him — and on the unlikely subject, moreover, of rape.

Last week, the Left’s favourite Tory, Ken Clarke, made some ill-advised observations about the sentencing of rape offenders during a radio interview on the BBC’s Today programme. His point, essentially, was that when it comes to sentencing there are different kinds of rape. There’s what we think of as ‘classic’ violent rape, where a woman is attacked and forced to have sex against her will. There’s so-called ‘date rape’, where two people are in bed together (in a relationship or otherwise), one of them decides at the last minute that they don’t want to have sex, and the other one goes ahead anyway. And then there’s statutory rape, where both partners are actually consenting the whole time, but because one of them is below the legal age of consent for sex, the law does not regard their consent as valid.

The outcry against Mr Clarke’s remarks was predictable. Rape is rape! Rape is always wrong! But of course, if you listen to the interview, nothing he said contradicts any of that. He was talking about sentencing, not conviction. He agrees that rape is rape and rape is always wrong. He simply thinks that the punishment for being convicted of rape should be decided based on the details of each case. Just as burglary is always burglary but the sentence varies with the circumstances, so rape is always rape but the sentence should vary with the circumstances. And, of course, it does. That’s why we appoint judges.

Ken Clarke’s mistake was not in his observations, which seem to me to be accurate and defensible, but in the fact that he made them on national radio. He’s been around long enough to know what to expect. Then again, perhaps he did know full well what he was doing, and decided to do it anyway, so as to get the issues out into the public domain — in which case, he took a political hit for the cause of rational discussion, and good for him.

Anyway. Whatever the motives, he was vilified. But then along came Roger Helmer, fringe Tory MEP, and wrote a blog entry defending him. Mr Helmer:

It’s pretty unusual to find me coming to the defence of Ken Clarke. But I think he’s had very unfair treatment from the media over his recent comments. So far as I can see, while agreeing that rape is always wrong, never defensible, that NO means NO (add your own cliché), he is also saying that the term rape covers a variety of circumstances and motivations and degrees of culpability, and that sentencing policy should reflect that. Surely this proposition is so self-evident, that it is difficult to see what all the fuss is about.

So far, so good. But Mr Helmer went further:

Let me make another point which will certainly get me vilified, but which I think is important to make: while in the first case [classic rape], the blame is squarely on the perpetrator and does not attach to the victim, in the second case [date rape between boyfriend and girlfriend] the victim surely shares a part of the responsibility, if only for establishing reasonable expectations in her boyfriend’s mind.

According to the Northamptonshire local media, responses to these further remarks have been even stronger. Comments on the web version of this newspaper report are representative:

What does this moron have to do to be sacked by the Conservative Party?! I have just had a look on his wikipedia page and there doesn’t seem to be a single group of people he hasn’t offended. He’s like that nutty old man ranting and raving at the back of the bus…

The man is a tool & laughing all the way to the bank on the Euro gravy train. I wonder if he would feel it partly his wifes fault if she was raped and beaten for doing no more than walking to her car one evening. This tool is totally out of touch with reality and should keep his mouth shut and his inane thoughts to himself!

This is an outrageous comment from a senior Conservative politician. There are no categories of rape. Rape is rape. This kind of attitude towards women will only discourage them from coming forward and reporting this hideous crime.

Well, I’ve already said that I think the distinction between different types of rape is useful and right when it comes to sentencing, even if it isn’t useful when it comes to determining guilt — just as, for any crime, judges are supposed to consider the precise details of the crime when they pass sentence. In this, both Mr Helmer and I are simply agreeing with Mr Clarke.

But what about the further claim that in some cases the rape victim shares some responsibility for the offence? This is a trickier one because there is the legitimate point that rape victims are already often reluctant enough to come forward and tell someone what happened, especially when the consequence for them is likely to be further protracted trauma followed by a fairly low probability of conviction. Anything we do to make this even less likely — such as publishing Helmer-type comments — risk making it worse.

That’s an important pragmatic issue, and I’ll come back to it in a second. First, the issue of principle. To start with, set aside the specific situation that Mr Helmer describes, and consider the more general question: is it ever possible for a rape victim to share any degree of responsibility for what happens?

It seems to me that we can invent extreme hypothetical scenarios in which it would be hard to deny that some responsibility can be ascribed to the victim. Consider, for instance, a situation where a couple are both horny as hell. Suppose the woman says, “I want to have sex with you, I want you to fuck me right now”. They go to bed, they race through foreplay, she gives every indication of enjoying every minute of it and wanting to go all the way, repeating her intentions at frequent intervals. But at the last possible moment, literally at the instant before penetration, she changes her mind and says “Stop!”.

Now suppose the man carries on. What can we say about the resulting situation? Is it legally rape? Yes, because she withdrew consent. Is it morally wrong? Yes, for the same reason. Ought the man to be convicted if it comes to court? Yes, for sure. Does the victim deserve to be raped? No, not at all — nobody deserves to be raped, ever. Did the man have to carry on, was it inevitable? No, unless he has psychological issues we don’t know about.

But here’s the crucial question for this discussion: does the victim bear any responsibility at all for the outcome? It seems to me hard to avoid the answer ‘yes’. She bears more responsibility, for instance, than the woman who is attacked and raped by a stranger in an alley, or who plays around with her partner because she trusts him and then finds that trust abused when he has sex with her against her will. Why? Because she deliberately created a situation where it was extraordinarily difficult for her partner to interpret her actions as anything but enthusiastic consent, and then withdrew that consent very late.

I shouldn’t have to add this caveat again, but reading the comments on Mr Helmer’s blog, I suspect I do: all my observations above are consistent with my view (and Mr Helmer’s, and Mr Clarke’s) that rape is rape, rape is always wrong, and the perpetrators deserve to be convicted. And I most emphatically do not think that the victim deserves to be raped, no matter what the preceding circumstances. If you think that I am saying these things, then you are not ascribing to me views that I do not hold, and confusing guilt with responsibility. I am discussing the separate question of whether it’s possible for the victim to bear any responsibility whatsoever — a small amount, in relation to the responsibility borne by the rapist — in some carefully-defined hypothetical circumstances.

Perhaps some people disagree with my view even in the hypothetical case I’ve described. Perhaps there is a viable view that, simply by withdrawing consent, the victim absolves herself (or indeed himself) of any responsibility whatsoever, no matter what the preceding circumstances. If this is a viable view, then I’d like to hear the defence of it, because I find it difficult to understand. And if you hold this view, then you should be aware that you think the crime of rape should be unique among all crimes on the books, in that the degree of responsibility ascribed to the perpetrator, and the sentence he receives, should be insensitive to the circumstances in which the crime took place. I’d be interested to know why you think this should be the case.

(And one further question. If you think that the victim bears no responsibility at all even in the circumstance I described above, would you continue to think that even if the victim had planned the whole thing from the start in order to entrap the man in a rape charge? If not, what’s the difference?)

So much for the question of principle. If it’s possible to invent an extreme scenario in which the victim bears at least a small share of the responsibility for the outcome (caveat caveat caveat), then the question becomes one of where to draw the line. There are thousands of different imaginable rape scenarios, and we need to know what the criteria are for judging when the victim bears responsibility and when not. Mr Helmer alludes to a situation where the woman creates “reasonable expectations”. Many commenters on his post take issue with this characterisation, and I can see their point. But the question then becomes: what criteria would you prefer?

I don’t know the right answer to that question, but I do know that there must be an answer unless you believe that there is no conceivable scenario when any responsibility is shared.

Finally, the practical question. Might comments like Mr Clarke’s or Mr Helmer’s discourage rape victims from coming forward, or increase their sufferings? I can see that they might, and if so, that would be a tragedy, because far too few rapes are successfully prosecuted as it is, and rape victims already have plenty of undeserved trauma to deal with.

But there’s a difficulty here, because if you also believe that their comments are broadly correct, then you have a tension: on the one hand, you don’t want to cause extra suffering, but on the other hand, you want the truth to be told and that truth to be reflected in public policy. And few people would want to say that any subject, no matter how right and important, ought not to be discussed if it might cause harm to rape victims.

Consider an analogy: the presumption of innocence. This is a cornerstone of English law and it applies to people accused of rape just as much as to those accused of other crimes. Among its many positive effects is the fact that it puts the burden of proof on the accuser. But this fact surely must significantly deter rape victims from coming forward, because it means they’ll have to go through a long, very unpleasant and quite possibly futile legal ordeal.

So the presumption of innocence (and its consequences) is a key factor in increasing the trauma suffered by rape victims. But should we therefore conclude that anyone who points out that the presumption of innocence applies in rape trials is acting unwisely and should shut up for fear of causing further distress to rape victims? Absolutely not, because the presumption of innocence is right and important, and rape victims as much as the rest of us deserve to be told about it and the consequences it will have for them. And if we believe, as I do, that many of the observations made by Mr Clarke and Mr Helmer are also right and important, then to try and stifle them simply because they have unfortunate consequences for people who are already suffering greatly would be a mistake. Like it or not (and I for one am pleased about it), our legal system does admit of shades of grey when it comes to culpability and sentencing, and rape victims as much as the rest of us deserve to be made aware of this.