The definitive version of the Sentencing Guideline Council‘s work on the 2003 Sexual Offences Act is now available and, as expected, is self-contradictory. The document acknowledges that sexual crimes against children are to be seen as automatically more serious
2.8 In addition, in principle, the younger the child and the greater the age gap
between the offender and the victim, the higher the sentence should be.
2.9 However, the youth and immaturity of the offender must also be taken into
account in each case.
2.10 The court in Millberry adopted the principle that a sexual offence against a child is
more serious than the same offence perpetrated against an adult and attracts a higher
But the actual sentencing structure places the starting point of sentencing for penetration of a child at 4 years and for rape of an adult woman at 5 years.
The document does, however remove the magic-13 distinction which has previously said that crimes against those under 13 are more serious than those against over 13 year olds (assuming a greater degree of victim culpability and willingness if aged over 13). Instead the new guidelines state that
3A.11 The starting points for sentencing where the child is aged 13 or over but under 16 should be higher than for the equivalent child sex offences, to reflect the inherent abuse of trust. The amount of enhancement should vary to reflect the wide range of ‘familial’
relationships covered by this offence – on the basis that abuse by a parent is more serious
than abuse by, for example, a foster sibling or lodger.
So in all, clearer guidance, but the problem (as ever) will be in whether judges implement it or continue (as we’ve seen recently) to impose very low sentences for persistent and continuing crimes (see the recent case of the Choirmaster who got 2.5 years for 10 counts of sexual assault against three boys over a five year period or five years for the rape of a 13 month old baby or five years for a rape of a 12 year old aggrevated with high levels of violence).
But the Guidelines continue to perpetuate old myths:
culpability is determined by the extent to which the offender intends to cause harm – the worse the harm intended, the greater the offender’s culpability. Sexual offences are somewhat different in that the offender’s intention may be to obtain sexual gratification, financial gain or some other result, rather than to harm the victim. However, where the activity is in any way non-consensual, coercive or exploitative, the offence is inherently harmful and therefore the offender’s culpability is high. Planning an offence makes the offender more highly culpable than
engaging in opportunistic or impulsive offending.
So the greater the resilience of the victim the less serious the offence. Also rape isn’t, as we know about sex, it’s about power and whilst this has, at least tacitly, been acknowledged the Guidance still perpetuates the belief that rape can be about sex. Sadly the “mitigating factors” still act against women:
Where the victim is aged 16 or over Victim engaged in consensual sexual activity with the offender on the same occasion and immediately before the offence
Where the victim is under 16
• Reasonable belief (by a young offender) that the victim was aged 16 or over
In July 2006 the Home Secretary admitted that the average sentence for a rape conviction is seven years. And we know that conviction is only reaching in 5.8% of reported cases. It’s a mixed up system, that’s for sure.