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Rape

Date Updated: January 2012

Title: Sexual offences

Offence: Rape

Legislation: Sexual Offences Act 2003 s1

Commencement Date: 01/05/2004

Mode of Trial: Indictable Only

Statutory Limitations & Maximum Penalty: Life imprisonment

Culpability & Harm

All non-consensual offences involve the violation of the victim's sexual autonomy and will result in harm. The seriousness of the violation may depend on a number of factors, but the nature of the sexual behaviour will be the primary indicator of the degree of harm caused in the first instance.

The extreme youth or old age of a victim should be an aggravating factor. 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. However, the youth and immaturity of the offender must also be taken into account in each case. All the non-consensual offences involve a high level of culpability on the part of the offender, since that person will have acted either deliberately without the victim's consent or without giving due consideration to whether the victim was able to or did, in fact, consent. The planning of an offence indicates a higher level of culpability than an opportunistic or impulsive offence.

Aggravating & Mitigating Factors

It should be borne in mind these lists are non-exhaustive and the factors are not linked in any particular order. Where a factor is an ingredient of an offence or is used to identify a starting point, it cannot also be an aggravating factor and care will be necessary to avoid double counting. Since sexual offences often involve some form of violence as an essential element of the offence, this is included in the starting points. However, it will be an aggravating feature if harm was inflicted over and above that necessary to commit the offence.

The guideline judgment in Millberry and others  established the principle that sentencers should adopt the same starting point for 'relationship rape' or 'acquaintance rape' as for 'stranger rape'. The Council has determined that the same principle should apply to all non-consensual offences. Any rape is a traumatic and humiliating experience and, although the particular circumstances in which the rape takes place may affect the sentence imposed, the starting point for sentencing should be the same. 

Aggravating:

  • Offender ejaculated or caused victim to ejaculate
  • Background of intimidation or coercion
  • Use of drugs, alcohol or other substance to facilitate the offence
  • Threats to prevent victim reporting the incident
  • Abduction or detention
  • Offender aware that he is suffering from a sexually transmitted infection
  • Pregnancy or infection results

Mitigating:

  • Victim engaged in consensual sexual activity with the offender on the same occasion and immediately before the offence

Relevant Sentencing Council Guideline (if any)

  1. Guidelines effective for offences sentenced on or after the 14th May 2007.
  2. The starting points are for an adult offender, of previous good character who was convicted after trial.
  3. There is no distinction in the starting points for penetration of the vagina, anus or mouth.

Type/nature of activity: Repeated rape of same victim over a course of time or rape involving multiple victims 

  • Starting points: 15 years custody 
    Sentencing ranges: 13 - 19 years custody

Type/nature of activity: Rape accompanied by any one of the following: abduction or detention; offender aware that he is suffering from a sexually transmitted infection; more than one offender acting together; abuse of trust; offence motivated by prejudice (race, religion, sexual orientation, physical disability); sustained attack 

  • Starting points: 13 years custody if the victim is under 13
    Sentencing ranges: 11 - 17 years custody
  • Starting points: 10 years custody if the victim is a child aged 13 or over but under 16
    Sentencing ranges: 8 - 13 years custody
  • Starting points: 8 years custody if the victim is 16 or over 
    Sentencing ranges: 6 - 11 years custody

Type/nature of activity: Single offence of rape by single offender 

  • Starting points: 10 years custody if the victim is under 13
    Sentencing ranges: 8 - 13 years custody
  • Starting points: 8 years custody if the victim is 13 or over but under 16
    Sentencing ranges: 6 - 11 years custody
  • Starting points: 5 years custody if the victim is 16 or over 
    Sentencing ranges: 4 - 8 years custody

Relevant Sentencing Case Law

R v Billam (1986) 8 Cr.App.R.(S) 48  early guidelines now replaced by the Sentencing Council Guidance. The case also  offers guidance  on attempted rape. The starting point for attempted rape should normally be less than the completed offence especially if it is desisted at a comparatively early stage.  But attempted rape may be made by aggravating features into an offence even more serious than some examples of the full offence.

R v Millberry [2003] 2 Cr.App.R.(S) 31 Another previous guideline case. While the guidelines are replaced by those above the case is useful for its guidance on a range of different situations. It also states the courts should consider:

  • The degree of harm to the victim
  • The level of culpability of the offender
  • The level of risk proposed by he offender to society

While rape will always be a most serious offence, it's gravity will depend very much upon the circumstances of the particular case.

Att Gen's Ref No 6 of 2002, 2003 1 Cr App R (S) 357 Where aggravating features have to be taken into account there is no artificial limit beyond which the court cannot go in reflecting those aggravating features.

R v Corran and others [2005] 2 Cr.App.R.(S) 73 - For the rape of a child under 13 no precise guidance can be give.  The appropriate sentence is likely to lie within a very wide bracket. There will be very few cases in which immediate custody is not called for, even in relation to a young offender. There will be some offences, for example where there is no question of consent and where significant aggravating features... Are present, where a long determinate sentence or a life sentence will be called for. Although absence of consent is not an ingredient of the offence, presence of consent is... material in relation to sentence particularly in relation to young defendants.

AGs Reference No. 86 of 2005 (Christopher James S.) (2006) 2 Cr App R (S) 270 Even on a guilty plea sentence should be a minimum of 5 years for rape of 3 year old niece. Defendant 23, mild learning difficulties, with only one caution for a dissimilar offence.

Masood (1997) 2 Cr App R (S) 137 and Att-Gen's Ref no 28 of 1997 2 Cr App R (S) 206. In each case the court declined to take any notice of the fact the victims were prostitutes. It seems this approach is preferred to the earlier decision of Cole 1993 14 Cr App R (S) 764.

R v W 1993 14 Cr App R (S) 256 It should not be thought a different and lower scale automatically attaches to the rape of a wife by her husband. All will depend upon the circumstances of the case. Where the parties are cohabiting and the husband insisted upon intercourse against his wife's will but without violence or threats this may reduce sentence. Where the conduct is gross and involves threats or violence the relationship will be of little significance.

R v Cadogan 2010 EWCA Crim 1642, 2011 1 Cr App R (S) 53 A sustained attack where sexual violence was used to punish, degrade and humiliate. Held it merited a severe sentence, extended sentence made up of 9 years custodial term and 3 year licence.

Ancillary Orders:

  • Notification (S83 to 96 Sexual Offences Act 2003)
  • The previous power to disqualify from working with children (S26 Criminal Justice & Court Services Act 2000) has been repealed. Under the Safeguarding Vulnerable Groups Act 2006 an offender convicted of rape is automatically included on 'the childrens barred list' and the 'adults barred list'. No order of the court is required.
  • Sexual Offences Prevention Order (S104 Sexual Offences Act 2003)

Consider Also:

  • Dangerous Offender provisions apply. Sentences for public protection must be considered in all cases of rape.

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