Rape

'Rape' is in the news - first is the accusation against the Managing Director of the IMF and second is the furore surrounding Kenneth Clarke's comments on Radio 5 Live.

No-one studying law would consider rape to be anything other than an offence of violence.  If there is no honest belief that consent has been given, the violation of another is, of itself, violent.  The problem that appears to arise is the confusion between the offence and sentencing of the offender. 

The press reporting of the offence is so often tied up with the sentencing - and Victoria Derbyshire's comments in the Kenneth Clarke interview typify the confusion.

When it comes to the trial and conviction of an offender, the absence of an honest belief in consent is what matters.  In some cases, consent cannot be given - for example, where the victim is underage - but the fact that consent cannot be given does not reduce the gravity of the offence itslef.

When it comes to sentencing, the fact that the victim was just underage and the offender just over it (for example) and the victim has given consent (in a non legal sense) would be relevant to sentencing - but not to conviction.

We need to remember that the circumstances surrounding offencers will be infinite and that each offence depends on its own facts ... and we should distinguish between the offence and the appropriate sentence.