Teenage boy jailed for raping his sister

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Introduction 

The Daily Mail reported today (23rd April 2014) of a boy who raped his sister about fifty times over a two year period, starting when he was aged 13 and she nine.

The details are sketchy, but it seems to have been fortnightly, only ending when the boy formed a sexual relationship with another girl.

He was sentenced to 10 years detention. The usual rules about release apply and he will have to serve 5 years in prison.

 

Comment

The sentencing remarks have not been released and the only thing that we have to go on (other than the facts in the Mail) is that the Judge said that had it been adult who committed the same offences then he would have got a 20 year sentence.

Despite the fact that the offences go back to 2011, the guidelines that came into force on 1st April this year are the applicable ones for an adult. The offence of rape of a child starts at page 27. However, the  guidelines only apply to someone aged over 18 at the time of sentence. There are some guidelines for sentencing for under 18s but these to not apply to this offence.

In those circumstances, one is meant to turn to the Overarching Principles : Sentencing Youths guideline. This doesn’t give actual guidelines, more guidance on sentencing youths.

The Judge appeared to take the nominal sentence for an adult and halved it, so let’s start there. Approaching it without looking at the age of the boy seems to be a difficult approach, but we can try. The first thing to look at is the Category. The things to look out for are :

  • Severe psychological or physical harm
  • Pregnancy or STI as a consequence of offence
  • Additional degradation/humiliation
  • Abduction
  • Prolonged detention /sustained incident
  • Violence or threats of violence
  • Forced/uninvited entry into victim’s home
  • Child is particularly vulnerable due to extreme youth and/or personal circumstances

It is difficult to know which, if any, of these apply. There is no reference to ‘severe’ harm or any of the other factors in the news reports. For it to have been a 20 year sentence, the Judge must have put it in the highest category. Although it doesn’t fit neatly into the “Prolonged detention /sustained incident” it must be that this applies.

Whilst the victim was vulnerable due to the fact that it was her brother, I would say it is different to being a father or step-father. She was not showing ‘extreme’ youth in my view (aged 9 when the guidelines are for under 13s).

For that reason, I would put it into Category 2 (just) because of the repeated ‘campaign’ of abuse and the other factors.

There is then a need to look at the culpability. The two features here that may be relevant are – Breach of Trust and Grooming behaviour. Again, it is hard to say which of these apply. I would suggest that it falls into the lower culpability.

These would give a starting point of 10 years, with a range of 8-13 years. If we follow the Judge and halve the sentence, this gives a sentence of 5 years. There was a trial, so there was no credit for a plea of guilty.

The problem here is that if this is an adult, this sentence would be far too low. And given his age, 10 years is too high in my view. To my mind this is the sort of case where, actually, the guidelines go out the window. I actually think this is a case where there should be a much lower sentence, but an extended sentence, so that there is scope for supervision.

 

Conclusion

I would imagine that there will be an appeal, just because the case is so unusual. The Judge heard the trial however and it wouldn’t surprise me if the Court of Appeal defer to his judgement on the matter.

It is also an example where the guidelines don’t really help – if anything, they just make it worse (as is so often the case).

 

 

 

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About Dan Bunting

I'm a lawyer who works for myself. Legal geek, maths freak, general dullard and jack of all trades. Here’s a few views on law and occasional musings on life. Usual caveats about not relying on anything I say etc applies.

9 thoughts on “Teenage boy jailed for raping his sister

  1. Liberte, Egalitie, Sororite

    You say of her being a 9 year old child that: “She was not showing ‘extreme’ youth in my view” could you enlarge on this. I’m not sure what is meant by “showing extreme youth” how do you demonstrate extreme youth by whose judgement?

    In any case she was nine and her brother would have known this even if she looked older. Where does this presumption come from that because a female child may look older than her actual age that it in some way mitigates sexually assaulting her/rape.

    The decision to rape, (a very adult crime) his sister was his alone yet you appear to believe allowances should be made for his age. Thirteen is more than old enough to realise his actions and the consequences of his actions why do you believe he deserves leniency?

    I am reminded of the case of Opemipo Jaji, which you covered previously, who received a community supervision order and various other non custodial sentences, no doubt due in part to his age, for a sexual offences who then went on to rape an 11 year old child. This to me only underscores the need to lock up people like him and the young man in this case, for as long as possible, if only for the safety of other children.

    Reply
    1. Dan Bunting Post author

      What I meant was that the guidelines are for rape of a victim under the age of 13 (ie aged 0-12). On that basis, ‘extreme youth’ has to be looked at in that context, and I would take it to mean very much younger than 13, so aged 5/6 or younger.

      You say “Where does this presumption come from that because a female child may look older than her actual age that it in some way mitigates sexually assaulting her/rape.” The answer is I don’t know – I’ve never suggested that and I don’t think it has ever officially been a mitigating feature.

      As to “Thirteen is more than old enough to realise his actions and the consequences of his actions why do you believe he deserves leniency?” I certainly think that the younger someone is the more lenient we should be. They are more likely to be able to change as well. It’s worth remembering that in much of Europe he would have been too young to have prosecuted. This is why America doesn’t execute people who were under 18 at the time of their offence.

      Reply
    2. Anon

      With such little information, and clearly no insight to the actual facts of this case I believe your ability to make such comments ‘the young man in this case’ also ‘for the sake of other children’ !! A little presumptuous. With such limited information you also feel you are able to predict ‘the young man’ in question’s whole future and the outcome of his life? You would do well, to better prepare yourself with the actual FACTS OF A CASE? ? Before openly making pre formed judgements that all accused ( in this case sentenced!) are in fact all the same. May I also suggest (as this may never have crossed your thought process) when making such damning comments, you may consider that it is not unreasonable to consider, all convicted are not always guilty as charged?

      Reply
  2. Liberte, Egalite, Sororite

    Why does this (see below) appear in the sentencing guidelines then?

    3A.2 A ‘reasonable’ belief that the child was aged 16 or over is a defence to all the child
    sex offences, provided the child was, in fact, aged 13 or over. With the same proviso, a
    reasonable belief that the victim was aged 18 or over is a defence to the familial child sex
    offences and the abuse of trust offences.

    Says it can be used as a defence hence my question where does this presumption that the “age” the victim looked , presumably to the rapey perpetrator, have any justification as a defence.

    And a 9 year old is extreme youth.

    Reply
    1. Dan Bunting Post author

      It’s not mitigation, it’s a defence. Unless the girl is under 13 in which case it’s not mitigation at all. The age of consent if 16, if a 16 year old boy meets a 15 year old girl who says she’s 16, and it is reasonable to think she is, why should he be guilty of sexual assault if they kiss?

      I agree that 9 years old is extremely young, but that doesn’t mean it’s extreme youth in relation to those guidelines.

      Reply
  3. Liberte, Egalite, Sororite

    The stuff men write into law to protect themselves when they choose to rape and sexually assault women and girls [and boys] beggars belief. It horrifies me.

    Reply
    1. Anon

      The stuff that isn’t written into law to protect someone’s innocence – truly horrifies me. In a case of historic rape , it is guilty and not allowed to prove otherwise, if the prosecution witness is under age? Surely there should be some evidence, from the prosecution, before a guilty verdict is returned?

      Reply
  4. Andrew

    L-E-S: The “mistake” defence will not run in rape (which includes this case) – it only applies to cases where the complainant gives what would be consent if she was old enough and no force is used. And then only if a jury buy it.

    But I disagree with Dan: I think 9 is extreme youth.

    Reply
  5. Anon

    I am not a lawyer? But I was of the opinion rape by definition is penetration? Would like to have an explanation as to how this ‘boy’ can be sentenced at all, when the ‘victim’ clearly stated ( and again when questioned personally by the judge) that she did not know whether her brother had ever penetrated her, she upon questioning knew no dates? Times? ( not even morning/afternoon/ evening.. Was it light or dark outside) … Before/ after school.. In the school holidays?.. Surely had ‘rape’ occurred once, let alone on a ‘supposedly’ regular basis, details would be a little less vague?… Also their was sat amongst the jury 2 police child protection officers.

    Reply

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