"Derbyshire: Yes. A rapist gets five years.
"Clarke: Rapists don't get… rapists get more than that.
"Derbyshire: Hang on a minute. Five years on average, yes they do Mr Clarke, yes they do."
Victoria Derbyshire, Radio 5 Live interview with Ken Clarke, Secretary of State for Justice, 18 May 2011
Later in this disjointed interview, the Secretary of State for Justice appeared to accept the five year figure but said it includes sentences of 18 year olds for having sex with "perfectly willing" 15 year olds who, being underage, cannot consent. These, he implied, might lower the average sentence.
The interviewer, for her part, stated that the five year figure came from the Council of Circuit Judges. In retrospect, that is not the right place to be looking for those statistics.
Official figures show that five years is not the correct figure.
The average sentence for rape in 2009, the last year for which we have been able to find figures, was 8 years (95.7 months). That Parliamentary answer gives figures from 2005 to 2009 and another gives the average rape sentence lengths from 2000—04.
They have ranged between 80 and 96 months in that time and the average of averages is 7 years and 3 months.
But averages can be misleading. We have asked the Ministry of Justice to provide us with a breakdown of sentence lengths for rape, an expanded version of those provided in a Parliamentary answer in February (which unfortunately lumped all sentences over four years together). That breakdown shows that more than one third are in the 5—10 year category, which suggests the eight year average may be representative.
Unfortunately a more detailed breakdown will not be available unless asked for through a Parliamentary Question, which Full Fact will try to secure.
Where does the five year figure come from?
Thanks to the programme naming their source, we can find out where the error came from. The Council of Circuit Judges responded to a consultation on these proposals for a 50 per cent sentence discount for offenders who promptly plead guilty in March. Paragraph 61 says: "A sex offender who admits rape faces a starting point of 5 years in custody" and then goes through the calculations cited by 5 live, concluding that under the proposals it would be possible that "release on licence would occur after 15 months."
We have asked the programme to confirm that this was the basis of their questioning but have not received a response so far.
The document shows that the line of questioning was justified but at some point a misunderstanding crept in which led to the accurate starting point figure being cited wrongly as the average sentence.
The starting point in that document, however, is far from the whole story. Looking at the Crown Prosecution Service's summary of rape sentencing guidelines shows it is the lowest possible starting point, applied only for a single offence of rape by single offender where the victim is over 16.
Even in that scenario, the sentencing range is given as 4—8 years.
For repeated rape, of one victim over time or of multiple victims, the starting point is 15 years and the range is 13—19 years.
It is obviously desirable for both judges and the media to highlight potential unintended consequences of changes that are under consultation and we make no criticism of them for focusing on the relevant cases.
However, as we reported yesterday, the great problem with securing convictions of rapists is not failure to get convictions in court but the rate of attrition where victims give up on the process before a conviction is achieved.
It might have been helpful for all involved to emphasise that the example was from the lower end of the spectrum rather than representing the typical sentence. We hope that people commenting in future will bear this in mind.
We will be asking Radio 5 Live to correct their assertion that on average a rapist gets five years in prison and we hope they will be willing to do that at the first opportunity.
People who have heard or read the interview will know it featured a caller called Gabrielle who was the victim of an attempted rape by someone who she said was out on license from a prison sentence for six sexual assaults. In researching this piece we came across some data on how common such a scenario is.
"In contrast, rape and serious sexual offences and possession of a knife or offensive weapon, only four per cent had three or more previous offences for the same or very similar offences." Sentencing Statistics: England and Wales 2009
There is some question as to whether 'only' is the appropriate term there.
The average sentence length does not take account of those who are given an indeterminate sentence for public protection. A Minister of Justice spokesman explained that these "are likely to be some of the most serious cases which would otherwise have received a long determinate sentence. " Another Parliamentary answer gives more detail about the tariffs set in these cases, which is to say the minimum time they must serve before they can even be considered for release. There is no maximum.
Please note that due to the different criminal systems in the other parts of the United Kingdom the figures in this article apply only to England and Wales.