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?
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 “firstname.lastname@example.org.
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.
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).
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).
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.