This article was first published by Solicitors Journal in March 2014, and is reproduced by kind permission. Click here to view the article.
Tougher sentences for sex crimes recognises the seriousness of these offences but they don’t provide all the answers, says Maryam Syed.
Stories in the last few weeks of sexual misconduct – whether the acquittal of William Roache a fortnight ago, the trial of DLT last week and impending retrial, or the inquiries into Lord Rennard’s and Mike Hancock’s behaviour by the Liberal Democrats – are pervading the public consciousness. The new sexual offences guidelines announced on 12 December 2013 and coming into effect on 1 April 2014 herald a harder line on how the courts must handle these types of cases in future.
The changes are numerous. The sentence for violent rape for a single offence – 15 years with a range of 13 to 19 years’ figures – was previously reserved for multiple rapes, with guidelines applying to all offenders irrespective of plea or convictions. In his speech trailing the new guidelines on 11 November 2013, Chairman of the Sentencing Council Lord Treacy acknowledged that “guidelines are never tramlines…but there is a need to take a positive decision to increase sentences, particularly at the extreme end of rape where it is associated with severe violence”.
The emphasis on victims echoes the government’s plan to encourage more victims to come into court to deliver impact statements in person. As a specialist rape and child abuse practitioner, I know that impact statements have always been one of the key elements of such an exercise. My experience is that very often a person does not want to make one, even if offered, or is content for the prosecutor to either read out or hand the statement up to the judge, particularly in private matters. Interestingly, Lord Justice Treacy observed that this aspect was not in his view “going to change the landscape of sentencing”.
In addition, the new guidelines will account for new uses of the internet and other communication media in the context of sex crimes, with tougher terms for offenders who use the internet or mobile phones to groom victims, film or publicise assaults, following R v Anibugu . Specific examples of culpability will now include the manipulation, exploitation or coercing of the child, by the use of gifts, bribes, alcohol and drugs. An offender targeting a vulnerable child, or lying about online age and persona to hide a significant disparity in ages, again raises culpability.
“Raised” harm, as a term, encompasses scenarios where a child is exposed to sexual imagery for the gratification of the offender. The gravity of the assault is now to be determined by whether penetration took place irrespective of ejaculation, and refusing to let someone leave their home now falls into the category of abduction or detention (rather than grabbing a person from the street). In my experience, some judges do not identify this scenario as detention but, under the guidelines, they must now.
Possession of indecent images will now have prison sentences at every level, with aggravation defined as the collection of moving images and placing images where there is potential for a high volume of viewers. Moreover, penetrative activity on its own, or penetrative activity with an animal, or featuring sadism, are all now classed in the highest graded category.
Some critics have pointed to a concerning shift towards a victim-centric focus, as opposed to equally considering the circumstances of the offender, as well as any mitigating circumstances. The Howard League for Penal Reform raised this concern and the removal, in the draft, of the concept of lower culpability.
Following the guidelines, all rape has become extremely harmful and a rapist now always has a high level of culpability. Offenders will have to demonstrate mitigating factors but the Sentencing Council said “it was aware of the difficulties and sensitivities concerning the treatment of mitigation in sexual offences”.
The Prison Reform Trust observed that if technological advances are driving this change, then increased jail terms for such offenders will not assist as there are currently no internet offender programmes run in any prison. Furthermore, it must be recognised that there are occasions where coercion and exploitation can be mitigating factors for an offender. Segregation of such offenders with each other in special units where access to treatment is likely limited makes it even more difficult to address the cause of offending.
Will the new measures result in increased appeals and prison population?
It may be necessary to reconsider how offences are recorded. A PNC printout only records the offence, with an assault possibly appearing separately. In practice, if a violent rape is sentenced then the only indication to the use of violence will be the term given.
Child offenders often present their own particular problems and vulnerabilities and, save one area, are not included in the guidelines. That work awaits.
Even though some members of the public believe that these proposals do not go far enough, the new guidelines represent a real call to toughen the sentencing range for sex offenders. The guidelines arrive at the same time as the announcement of a five-year low in the referral of rape cases by the police to the CPS. These new guidelines make it plain how high the stakes are.