Sentencing Council consultation on guideline for sentencing sexual offences

Sentencing CouncilUpdate 12/12/13: the Sentencing Council have released their new guidelines. Press notice here. The new guidelines make fundamental changes in response to the consultation.

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The Sentencing Council recently consulted on a new guideline for sentencing sexual offences. It sought views on:

  • the main factors that reflect the harm caused to the victim by an offence
  • the culpability of the offender
  • the additional factors that should influence the sentence; and
  • the approach and structure of the guidance and how this should be tailored to different offences.

I have partially completed the consultation – my response below. I have  logged with the Sentencing Council how arduous it was to attempt the consultation. While many interest groups have resource and expertise to gather members views, the individual is left to work through complex technical language while navigating an online web survey tool which breaks sections up into many chunks so you have to keep wrestling with the navigation to find out what you said previously. The SC confirmed that it was possible to submit views by email – which is what I have now done – I’ve asked if they could make this option clearer in future. These are hugely important issues and everyone should have the chance to feed in. The SC will report back in due course on the response to the consultation.

My response:

Rape – the offence

1. Do you agree with the approach to harm and culpability proposed, in order to reflect the fact that all rape involves harm to the victim and a high level of culpability?

  • Not necessarily. Unless you can get the language absolutely right, then I feel there is a huge risk in having more than 1 “level of rape”. The phrase “baseline of harm” could be inadvertently or deliberately misconstrued, e.g. “oh, it was just a ‘baseline’ rape, not a serious one”. I’m not clear from the text why there has to be two levels – why can’t the judge have guidelines which cover the factors you have mentioned which, if present, would lead to higher sentencing due to victim harm, offender culpability, danger to the public and likelihood of re-offending – without the categories?
  • ‘More than one attacker’ and ‘being drugged and not remembering the attack’ could cause additional ‘harm’.

2. Do you agree with the harm and culpability factors proposed at step one for rape? If not, please specify which you would add or remove and why.

  • The reasons for inclusion of “Context of habitual sexual abuse” as a harm factor is unclear. If this is based on expert views then that is fine. But it’s not obvious to me how it’s more or less harmful than non-habitual sexual abuse. Also, I would expect “context of habitual abuse” to be included under “targeting a vulnerable person”, but it’s not clear whether it is.
  • Some of the factors listed under ‘culpability’ would seem to be harm factors too potentially, i.e. vulnerability; I am thinking of the victim having a lower mental age – might they suffer more ‘harm’ if they were less able to process what had happened in the same way that a child may suffer more? I’m not sure.
  • Should be added: Culpability should be higher for an attack motivated by or based on hostility towards someone’s gender. If misogyny were established then an even higher sentence should be given – e.g. the offender would be more likely to commit further offences against women. I don’t understand why you include the other E&HR characteristics but then specifically omit gender?
  • How would a previous conviction/s for rape or other sexual offences fit into this framework? Does this assume a first offence, with previous convictions potentially adding to the total? Or should it be stated clearly that previous convictions are a culpability factor at step 1 and 2?
  • Please apply the comments above to any other part of the consultation where you have discussed harm and culpability factors.

Rape: starting point and category range

3. Do you agree with the aggravating and mitigating factors proposed at step two for the offence of rape? If not please specify which you would add or remove and why.

  • I am confused by the overlap between culpability factors and aggravating factors. I’m unclear how this would work in practice. Do factors under both culpability and aggravating count double?
  • I am wary about the scope of what counts as a ‘relevant’ or ‘recent’ conviction. You are presumably proposing that a previous crime which was driven by hatred towards women would be ‘irrelevant’ as per your logic discussed in Q2 above? I would strongly disagree with this approach.
  • I disagree with the approach on age. If someone is capable of rape then they are fully responsible for it, except in some circumstances under the separate category of ‘mental disorder’, or in more extreme cases of diminished responsibility where it could be proved the offender really did not comprehend what they were doing. You say that the difference this would make to the sentence would not be to the length but to the form it takes, e.g. treatment rather than punishment – my view is that all offenders should receive both. But the priority should be to the victim and to others in society, therefore the offender should be taken off the streets if there is the any significant threat of re-offending.
  • One mitigating factor I thought should be included was whether the offender had themselves suffered abuse. The effect of this might be more intensive treatment, or priority for treatment given to them. It should not mean a lower sentence.
  • Please apply the comments above to any other part of the consultation where you have discussed aggravating and mitigating factors in the context of starting point and category range.

Rape sentences

4. Please give your views on the proposed sentence levels (starting points and ranges) for this offence? If you disagree with the levels stated please give reasons why.

  • A ‘campaign’ of rape should receive a life sentence (or whatever the longest term is under law). You’ve not defined what you mean by ‘campaign’, and the speech marks suggest it is a subjective interpretation, which when taken with the subjectivity of the totality principle concerns me. Anyone convicted of multiple rapes needs removing from society until a point is reached where a parole board is 100% convinced they no longer pose any threat to society.
  • Please apply the comment above to any other part of the consultation where you have used the term ‘campaign’

Rape of a child under 13: the offence

13. Do you agree with the harm and culpability factors proposed for rape of a child under 13? If not, please specify which you would add or remove and why.

  • Hostility towards the victim should also include that based on gender.
  • The use of celebrity or power should be a culpability factor. This could be made clearer under ‘abuse of position of trust’, which currently suggests a narrow interpretation.
  • Please apply the comments above to any other part of the consultation where you have discussed harm and culpability factors in the context of an offence.

Rape of a child under 13: starting point and category range

14. Do you agree with the aggravating and mitigating factors proposed for rape of a child under 13? If not, please specify which you would add or remove and why.

  • “No previous convictions” should not be a mitigating factor. The presence of previous convictions should be an aggravating factor.
  • Previous good character is irrelevant – they have now sexually assaulted a child!
  • An absence of remorse should be an aggravating factor. The presence of remorse (easily faked) should not be a mitigating factor.
  • Age and responsibility should be separated out in all types of offence in this consultation. Age should not be a mitigating factor at all. “Diminished responsibility” might be if the person really did not know what they were doing, but then that comes under mental disorder/learning disability. See comments to Q3.
  • Please apply the comments above to any other part of the consultation where you have discussed aggravating and mitigating factors in the context of starting point and category range.

Rape of a child under 13: sentence levels

15. Do you agree with the narrative suggested for rape of a child under 13? If not, do you have other suggestions as to the wording?

  • No. Unless the danger to the community is circa 0% then the offender needs taking off the streets. There are no proven programmes to treat sex offenders. You are taking chances with people’s lives – each individual sexual abuse event can ruin someone’s life forever. “Justice” has to be ultra-cautious and conservative in these cases. I fully support treatment programmes, but they are not being funded for political reasons. Sentencing has to take that reality in to account.

16. Please give your views on the proposed sentence levels (starting points and ranges) for this offence. If you disagree with the levels stated, please give reasons why.

  • In all the cases, the offender should not be released unless professional experts are 100% confident that they are fit to be released.
  • In all cases, the sentence should mean the time given above. Unfortunately, I am reading “6 years” and thinking they would be out in 2-3 years for raping a child. They need to be mandatory minimums.
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One comment

  1. Pingback: Is it only physical violence against women that we don’t tolerate? | What Can I Do About It?

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