I think there is clear evidence that rape in whatever circumstances causes unimaginable trauma. The long-term emotional hurt is much more severe than other forms of violent crime because of the intimate violation. It is not appropriate to categorise the strength of the crime by a victim's response as an individual's resilience is not a mitigating factor. It must be the principle for our society to try to obtain suitable justice for all rape victims. The question that has been raised by Ken Clarke's comments and their after-math is whether or not some form of categorisation of rape crime will assist the courts gaining not just more convictions, but convictions with the appropriate level of punishment and protection of society from further potential crime.
At the same time, we must be cautious to avoid unfair & unsafe convictions because being convicted of a sexual crime when innocent can destroy a person's life.
The outcry over Ken Clarke's attempts to categorise rape seem to arise from the insinuation that some forms of rape are more serious and cause more hurt than others. This is a natural reaction and probably such clumsy categorisation may not be the right approach to the issue. But the problem remains that the public and juries do sense that there are different types of rape and are therefore reluctant to convict different circumstances of rape crime with a blanket offence.
My feeling is that we may need to draw on the distinctions we make in law for other forms of crime - murder and theft, for example. Murder is murder and the loss of life for the victim is the same on all cases. However, courts in this country and more so elsewhere do note the role of pre-meditation in the mind of the perpetrator. I think this should also be applicable to rape. There seems to be a real difference to the criminal intent of a person who plans to commit a rape and what might occur in what is termed "date rape". This in no way tries to say that the victim is any way less offended against or less affected. But it puts the intention of the perpetrator into perspective.
Perhaps the concept of crime of passion as used in USA in murder trials is also useful. Would this not apply to say the situation where consensual sexual activity had commenced, then the girl made her intentions clear for it to stop or not go beyond a certain point, but the boy continued against her will. I think juried would be more likely to rule that this was a crime of passion than a pre-meditated rape and would therefore be more willing to pass judgement on that basis. Perhaps those indicted might be more likely to plead guilty.
Obviously as with all crime cases, juries would have to decide on the facts when the situation is murky and unclear. In cases where the girl says "No" before sexual activity commences, or there is any evidence of the boy (and I apologise for only using the male as perpetrator in this short piece) preparing for the event with rape drugs or in some way trying to subdue her will, that would be pre-meditated rape. A person's hope or aspiration to have sex as part of a date is not in itself pre-mediated rape, but it could be a factor. However, once sexual activity has begun (and the boundary after which a person might assume that sex was consensual would have to be discussed - kissing for example would not be the boundary) then a person may have a case for claiming it was a crime of passion and it is more likely the jury would agree with that and convict him rather than release him unconditionally.
Again this is no way tries to say the victim was any less offended or that their wounds and emotional scars are not as severe. But it helps to gain justice for the victim which is some small way a help to them - and far better than seeing the perpetrator walk free.