Clare McGlynn (Durham Law School)
This article was originally published on the Guardian website on Thursday 19 May 2011.
The justice secretary, Ken Clarke, was clearly wrong when he suggested that some rapes are more serious than others. But he was right to start a debate on sentencing discounts for early pleas in rape cases.
Securing more guilty pleas at an early stage of an investigation – and most specifically not at the doors of the court – would be a positive step for many victims. An early admission can relieve a victim of the burden of pursuing a case through the demanding prosecution and trial process which many victims experience as a “second rape”.
An acknowledgement of responsibility by an offender is fundamental to many victims’ sense of justice. For many, exposure of the offender is more important than punishment and long prison sentences. They want to deprive him of his undeserved honour and status. They want vindication from their communities and families that they were harmed, that it wasn’t their fault, that the offender is to blame.
Justice for rape victims does not simply equate to long prison sentences. The Victims’ Champion (pdf), Sara Payne, has urged us to reconsider our definition of justice, so it is “not just punishing a perpetrator and preventing further crimes”. She suggested that an offender who pleaded guilty on the day of trial should not gain a discount, but that incentives for an early plea of guilt should be investigated. A 2009 academic study (pdf) on rape and the legal process also recommended looking at ways to encourage early admissions.
Further support for this approach can be found in the Stern Review (pdf) into how rape complaints are handled, which the government has said it endorses in full. Lady Stern found that securing a conviction and punishment is important for victims, but so is simply being believed. She advocated policies which “honour the experience” of rape, with victims feeling that their experience has been understood, its effects acknowledged and holistic support offered.
While some victims gain peace of mind from their attacker being behind bars for a lengthy period, decades of punitive sentencing regimes and higher and higher prison populations have not secured justice or safety for most victims of sexual violence. There is little evidence that deterrence works, or indeed that prison works. So what should we do?
We must work to actively change attitudes. Even compared with our most senior judges, Ken Clarke is out of touch.
The lord chief justice in the recent case R v A (2011) stated that “rape within a relationship, including marriage, is no less serious than rape by a stranger”. He continued that we must “look at the offence through the eyes of the woman who is the victim”. This approach, listening to each victim and treating all rapes as serious, and securing convictions wherever possible, must filter down to all levels of the criminal justice system and into society at large.
If we listen to victims, our assumptions about justice and victims’ needs may be challenged. As well as sentencing reform, the government’s consultation paper considers greater use of restorative justice, which requires the offender to acknowledge responsibility and take steps to make amends. Restorative justice has been used in a handful of adult rape cases in England, with some victims finding it valuable and recommending its wider use. It may have a role to play in meeting some of the needs and expectations of victims, by giving them a chance to tell their story in their own way and granting them a measure of control over the treatment of their complaint, such that some may gain a sense of justice.
After the debacle of the past few days, it would be shameful if the voices of victims were drowned out in the clamour to be seen to be tough on crime, with recommendations on sentencing discounts and restorative justice being abandoned.
Over the past 24 hours, we have seen much posturing from politicians on the gravity of rape. David Cameron may have appeared to be the rape victim’s friend in parliament on Wednesday when he said that rape was always a serious crime and should always be treated as such. But this is the same David Cameron who last spring argued in favour of anonymity for rape defendants on the basis that “we know a lot of people are falsely accused“.
We must ensure that rape is not used as a political football because the real needs and demands of victims will be buried and the work needed to change attitudes and secure justice will be lost in a storm of punitive-correctness.
Clare McGlynn is a professor of law at Durham University. She is investigating the use of restorative justice in rape cases together with colleagues Nicole Westmarland and Nikki Godden and is co-editor of Rethinking Rape Law: international and comparative perspectives (Routledge).