Tuesday, 29 July 2014

The Proportionality of Rape

So, Richard Dawkins (who is hardly my favourite person at the best of times) has got himself into a spot of bother on Twitter for the suggestion that some cases of rape are worse than others.

Cue the rent-a-mob from the outrage bus decrying him. Cue me saying 'actually, the bloke's got a point'.

I will lay out my position as clearly as possible.

In our criminal justice system, we generally recognise that crimes have degrees of severity. Wider circumstances surrounding the crime, such as motive, method, planning, consideration, provocation, previous good character etc. are treated as either mitigating or aggravating factors in sentencing. A man murdering his wife because he found her in bed with someone else is likely to be treated more leniently than a man abducting and murdering a woman he doesn't know for no apparent reason. His state of mind at the time is likely to be considered as a mitigating factor.

We accept this proportionality quite readily, being prepared to accept that some instances of crimes are worse than others, and should therefore face tougher sentences.

Except rape.

Whenever rape is mentioned, all logic and objectivity seems to be thrown out of the window. Of course, by it's very nature, rape is a highly emotive subject - but that is all the more reason why logic should not be abandoned. It is a basic principle of our jurisprudence that those who are aggrieved cannot sit in judgement, as emotion can cloud objectivity. The oft-heard cry is that 'rape is rape' - that all rapes are equally severe. By extension, this implies that all rapists should receive the same sentence, regardless of the circumstances.

This flies in the face of the concept of proportionality which I have described above, and strikes me as having no basis in logic or law.

Let me be absolutely clear. Rape is a vile crime for which there is absolutely no justification or excuse. It is - and rightly so - classed as an extremely serious criminal act, which carries with it a heavy criminal sanction of imprisonment. That being said, there are some conceivable instances of rape which are worse than others, due to aggravating factors such as motive, method, planning etc. For example, I would argue that a serial rapist who has raped and assaulted someone with a knife, causing serious damage to their body in a pre-meditated and predatory attack should face a significantly higher sentence than a first-time offender who took advantage of a drunk semi-conscious girl. That does not imply that the second instance is an acceptable, or 'mild' act - it is not. It is still deplorable and inexcuseable. But you would certainly expect the perpetrator in the first instance to suffer a significantly higher sanction.

That being said - that you would expect someone to receive a higher sentence for a more serious instance - it follows that the mantra of 'rape is rape' is invalid. There are circumstances when you can conceive that tougher penalties should be applied. This does not seek to diminish the experiences of 'date-rape' victims, or try to justify the awful experience to which they have been subjected. It simply says that there are conceivable circumstances where one rapist should receive a tougher sentence than another, and that therefore, some rapes are more serious than others. None are mild. None are justifiable or excuseable. But some are so severe that they require higher sanction.

Because of this obvious fact, rape, like all other crimes, is proportional.