Have Your Say – Sexual Offences Sentencing

Introduction

Do you feel that the sentencing for rape is too soft? Too harsh? What about other sexual offences?

The Sentencing Guidelines Council are having a consultation prior to drafting new guidelines for 54 sexual offences. There are guidelines on many of these offences that were issued in 2007, but the Council will be looking at whether these need to be reviewed and, if so, in what way.

You do not have to be a lawyer, or involved in the legal system in any way, in order to respond to a consultation. In fact, it may well be that it is more useful for non lawyers (who may not have a preconceived idea of what sentences ‘should’ be) to make their views heard.

How do I respond?

An overvieww can be found here. The full consultation is here.

Because the document is very large, the Council have broken it down into 7 different categories of sexual offences. Also, to aid responses, there is a series of ‘check boxes’ to give feedback. The Council will look at written, more detailed, responses as well however. These can emailed to “consultation@sentencingcouncil.gsi.gov.uk.

Will the Council listen?

A good question! It can be said that all the responses will be looked and will be considered. If someone suggests something that is crazy (or illegal) such as having the death sentence for rape, then it’s fair to say it won’t find itself in the Definitive Guidelines. The more people that give a similar indication on a particular point however, the more likely it is to be adopted.

But it’s obviously trite to say that if you don’t respond, then there is no chance that they will listen …

What are they recommending?

The press release gives a good overview. It does not appear that they are making radical proposals, more filling in the gaps and giving greater guidance, as well as updating the guidelines to take account of the ever changing world of modern technology.

Different offences have different approaches, but looking at rape as an example, there are currently 3 brackets of offending with 7 specific aggravating features and 6 mitigating features. The new guidelines has three levels of offending, but is structured very differently. It has to be said as well, that it is not structured very clearly.

There are 13 factors that indicate a ‘higher culpability’ and 7 factors indicating a ‘greater harm’. The first stage is to consider where the ‘harm’ falls. Here there are 3 categories. If none of the 7 factors of greater harm are present, then it is Category 3. Presence of any of the 7 factors ups it to a Category 2. To hit Category 1 requires extreme violence or the ‘extreme nature of one or more Category 2 features’.

This fixes the Category. Then, the Categories are split into two (A and B). To identify which, one must look at the culpability factors. If any of those are present, then it is A, if none are then, B.

This then fixes the starting point and sentencing range. There are then 14 further aggravating features and 5 mitigating features that determines (along with the facts of the case and other mitigation) where in the range

the sentence falls.

Credit for a plea of guilty is then factored in. Bear in mind as well that for many offences it will be necessary to look at dangerousness.

Hmm…Sounds complicated?

Yes. It is. It’s fair to say that once you get your head around it, it does get a bit easier. But, having said that, it is not clear whether this will make life easier or not. On balance, probably not. Is it therefore a useful exercise? Not for me to say.

By way of example, let’s have a look at the case of Ched Evans (useful as we have a lot of detail from the news, as well as a Court of Appeal judgment).

Current Guidelines

It falls into the lowest of the three categories, and, as the victim was over the age of 18, the starting point is 5 years. In terms of the aggravating features it seems that only one (ejaculation) was present and no mitigating features. This would give (as there was no credit for a plea) a starting point of 5 years which was the sentence passed (the aggravating feature, if it was present, would not have lead to a noticeable increase).

Proposed Guidelines

Here, there do not appear to have been any of the ‘harm’ features present, so it would be a Category 3. In terms of the Culpability, ‘Member of group or gang during commission of offence’ and ‘Vulnerable victim targeted’ could both be considered to be present (although both are arguable – the other man was acquitted and the guidance refers to other ‘offenders’. Also, whilst the victim was vulnerable, it is not clear that she was targeted because she was vulnerable). If the Judge determined that they were, then the offence is 3A (starting point 7 years, range 6-9), if not then it is 3B (starting point 5 years, range 4-7). On balance, we would suggest that it falls into 3B.

Only when the bracket is fixed, do you look to the aggravating and mitigating features. It is not clear whether any of those are present in the Evans case (when does the ‘location’ or ‘timing’ of the offence aggravate it?) apart from the last one – ‘commission of offence whilst under the influence of alcohol or drugs’ which appears to have been present here. On that note, whilst it has long been held that being drunk is not a mitigating feature, it is not clear whether being drunk should aggravate the offence. Should it be? What do you think?

The mitigating features would be ‘no previous convictions’ and ‘previous good character’ (it is not clear why that is a separate mitigating feature), although it is made clear that these features, of themselves, should not lead to a significant reduction.

On this basis, it would seem that the appropriate sentence would have therefore been in the middle of the the 3B bracket – about 5 years. This would obviously be the same as under the old guidelines.

It is likely that the features present in the harm and culpability will appear in the majority of cases. Given the indication that the Guidelines are not supposed to increase the length of the sentences (at least for Categories 2 and 3), it may be that Judges will interpret them liberally to keep offences in the lower bracket of culpability.

This is just one example. There are two further (hypothetical) examples given in the Consultation Paper at page 19.

What happens next?

The deadline for responses is 14th March. When the consultation has closed, the Council will review all the responses and produce a definitive Guideline. This will apply to all people over the age of 18 sentenced after that date (whenever the offence was committed) in England and Wales.

If anyone wants to share thoughts, or has any questions about the consultation, please post them in the comments section and we will endeavour to answer them all.

20 thoughts on “Have Your Say – Sexual Offences Sentencing

  1. goggzilla

    Contributory negligence? Nobody asks to be raped but Miss B walking in a park attacked by a stranger is different from Miss C, who is in the room of a man (or he is in her room) by invitation and naked. “Buyers remorse” is not rape. What of false allegation? The Ched Evans case v interesting esp social media aspects.

    Reply
  2. Dan Bunting Post author

    I think that many (most?) people would find the terms ‘contributory negligence’ and ‘buyers remorse’ offensive – I know that I do (personally). What impact would you suggest that the two scenarios you mention should have on the sentence?

    False allegations are not relevant as someone will only be sentenced after a conviction, and at that stage it will be assumed that the conviction is a ‘true’ one.

    Reply
  3. sisterhooduk

    Ched Evans was not in a hotel room “by invitation” of Miss C he used lies and deception to get the key to the hotel room, as he admitted, he let himself in uninvited and unannounced and he had he brother and a mate stand outside the window of the hotel room to film whatever it was he had planned for Miss C. Naked and without her knowledge or consent It’s called Rape.

    Reply
  4. sisterhooduk

    My apologies Dan I was responding to the comment by goggzilla which was inaccurate I imagine as a lawyer you probably could define rape better than I. I have responded to the consultation and I felt the sentences for category 3b offences started too low. A stronger message needs to be sent to rapists about the seriousness of what they have done.

    Reply
  5. Dan Bunting Post author

    Sorry! It was certainly a slightly odd comment from goggzilla.

    Just out of interest, what have you suggested the starting points should be? Have you responded to the other parts of the consultation? I’m still drafting mine…

    Reply
  6. sisterhooduk

    For a category 3b offence I felt that the starting point ought to be seven years with six years the minimum and nine years the maxium. Raping someone and then out on licence for 2.5 years seems lenient. I also rejected the idea of any sort of community service as an alternative to jail time for sexual offences. I felt this could create a situation where a prolific perp wouuld now exactly what to do to stay out of jail but still behave inappopriately

    Reply
  7. Andrew

    I would never exclude community service for the less-than-rape offences – there is always the odd case which does not fit the stereotype – but I entirely agree that the starting point should be custody.

    The problem is always this. Rape is always evil but there are evil cases and even more evil cases, and that means that some cases are less evil than others. Rape of a child is even worse than rape of an adult; rape by a gang is even worse than rape by one perp; a campaign of rape is even worse than rape of one victim (and of course the one-victim defendant may have intended a campaign if he had not been caught, but in the absence of evidence you cannot assume that); rape is even worse if more violence is used than is “necessary” (sorry, sisterhood, I can find no way in the English language to say that without sounding offensive; I hope the quote-marks will convince you that such is not my intention); rape is even worse when the rapist urinates over his victim afterwards.

    And sentencing must reflect those distinctions.

    Reply
  8. Dan Bunting Post author

    I think that Andrew has summed up what I think about the approach to different sentences.

    @sisterhooduk – presumably the other sentences for rape would be increased in line with the increase of 5 to 7 years in the 3B offences. I don’t think that (except in some extremely rare cases) sex offenders would regulate their activity to keep in the non-custodial area. I think those people don’t think about their offending, at least in the sense of calculating the likely sentence if caught and convicted. In any event, repeated ‘low level’ offending would lead to a custodial sentence.

    Reply
  9. sisterhooduk

    I haven’t read the entire consultation as there was much to read and to understand (for non lawyers) I was struck when reading some of the ways in which victims have been harmed, and though the consultation were at pains to say this wasn’t the case, however that walking away from rape minus physical injury was perhaps the least worse outcome for the victim. However the mental scars should not be played down for example where a victim offers no resistance because she (or he) has children in the house or an elderly relative and complies for the sake of protecting them but surely the “what if” scenario is going round in her head the whole time. This is where I struggle with Cat 3b the perp doesn’t even need to threaten them or know they’re there necessarily the parent knows that’s enough and why I believe a higher starting point is needed.

    I’m struggling to think of a scenario for a sexual offence that would warrant community service I suspect things likes indecent exposure and voyeurism are considered lesser offences and possibly viewed as a bit of a joke except to the victim. What message are we sending with a community service order other than here’s a slap on the wrist now get on your way.

    Reply
  10. Dan Bunting Post author

    I hope you make the point in your response about how hard it is to get through – I found it very tough going.

    In relation to offences that could properly lead to a non-custodial sentence, voyeurism and exposure will often be dealt with by way of a community penalty. I think that that is correct in many cases as it will be the best way of stopping the behaviour from escalating. There are many other examples of other offences (including some low level ‘contact offences’) that I think don’t warrant a prison sentence.

    With children (and many young offenders) different considerations apply and we should be much more willing to pass a community sentence.

    Reply
  11. Pingback: Have Your Say – Sexual Offences Sentencing | UKCrimininalLawBlog | Scoop.it

  12. sisterhooduk

    I meant to ask what was your thoughts on the sexual offences sentencing and what did you think of the recent case regarding alleged voyeurism going on at the Old Bailey.

    Reply
    1. Dan Bunting Post author

      We can’t say anything about an ongoing case.

      In relation to the guidelines, we may do a response (time permitting). I don’t think that there is anything too wrong in it. I tend to think that sentencing generally is too high, but that is across the board, not just for sexual offences.

      Reply
  13. Andrew

    I hope you mean “the recent case going on at the Old Bailey regarding alleged voyeurism”!

    Reply
  14. sisterhooduk

    Thank you Andrew I love the English language for its ability to do that I put the words out there in any order and rely on the better educated to sort them into the correct order

    Reply
  15. Pingback: UK Criminal Law Blog

  16. Pingback: Michael Ireland – Spiritual Healer sent to prison | UK Criminal Law Blog

  17. Pingback: Rape Suspect turns Spy | UK Criminal Law Blog

  18. Pingback: Nigel Evans Sex Case verdict in | UK Criminal Law Blog

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s