S5. Rape of child under 13
Date Updated: January 2012
Title: Sexual offences
Offence: Rape of Child under 13
Legislation: Sexual Offences Act 2003 S5
Commencement Date: 01/05/2004
Mode of Trial: Indictable only
Statutory Limitations & Maximum Penalty: Life imprisonment
Sentencing Range: See below
Culpability & 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. "... the purpose of the legislation is to protect children under 13 from themselves, as well as from others mided to prey on them." (per Rose LJ in R v Corran and others  2 Cr.App.R.(S) 73).
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.
- 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
- Victim engaged in consensual sexual activity with the offender on the same occasion and immediately before the offence
- Sexual activity between two children (one of whom is the offender) was mutually agreed and experimental
Relevant Sentencing Council Guideline (if any)
- Guidelines effective for offences sentenced on or after the 14th May 2007.
- The starting points are for an adult offender, of previous good character who was convicted after trial.
- 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
"... no precise guidance can be given. The appropriate sentence is likeley to lie within a very wide braket, depending on all the circumstances of the particular offence. There will be very few cases in which immediate custody is not called for, even in relation to a young offender because the purpose of the legislation is to protect children under 13 from themselves, as well as from others minded to prey on them." (per Rose LJ in R v Corran and others  2 Cr.App.R.(S) 73).
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.
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.
Corran and others 2005 2 Cr App R (S) 73 The CA said of S5... no precise guidance can be given. The appropriate sentence is likely to lie within a very wide bracket, depending on all the circumstances of the particular offence. There will be very few cases in which immediate custody is not called for, even in relation to a young offender because the purpose of the legislation is to protect children under 13 from themselves, as well as from others minded to prey upon them. The offence is of such seriousness that custody is likely to be called for ...There will be some offences, for example where there is no question of consent, and where significant aggravating features, as identified in Millberry 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, in our judgment, material in relation to sentence, particularly in relation to young defendants. The age of the defendant, of itself and when compared with the age of the victim, is also an important factor. A very short period of custody is likely to suffice for a teenager where the other party consents. In exceptional cases, a non-custodial sentence may be appropriate for a young defendant. If the offender is much older than the victim a substantial term of imprisonment will usually be called for.Other factors include the nature of the relationship between the two and their respective characters and maturity, the number of occasions when penetration occurred, the circumstances of the penetration, including whether contraception was used, the consequences for the victim, emotionally and physically, the degree of remorse shown by the defendant and the likelihood of repetition. A reasonable belief that the victim was 16 will also be a mitigating factor, particularly where the defendant is young. Pre Act authorities such as R v Bulmer 11 Cr App R(S) 586 , R v Oakley 12 Cr App R(S) 215 and R v Brough  1 Cr App R(S) 55 , which indicate a sentence of the order of 15 months for a defendant in his twenties, will continue to provide assistance, particularly bearing in mind that life imprisonment was the maximum sentence for the pre-Act offence of having sexual intercourse with a girl under 13.
Att-Gen's Ref No's 74 and 83 of 2007, 2007 EWCA Crim 2550 "when considering culpability, actual consent was recognised as being capable of being a mitigating factor. Careful consideration should be given, particularly where there was a significant discrepancy in age, to the extent to which ostensible consent had been obtained opportunistically, or by means of coercion or exploitation, which would be particularly relevant in cases where there might have been an element of grooming. In those cases ostensible consent might well have little value as mitigation." The CA went on to suggest assistance was provide by the guidance issued under S9 of the SOA: "if the offender did not reasonably believe that the other person was 16 or over. The maximum sentence for an adult was 14 years' imprisonment; the Definitive Guideline gave four years as the starting point and a sentencing range of three to seven years. Bearing in mind the legislative purpose of creating the absolute offence under s.5 of the Act for victims under 13, this would suggest that four years should be the minimum, subject to plea and personal mitigation, in the case of a young adult even when there was ostensible consent and a reasonable belief that the victim was 16 or over. The Court would not exclude the possibility of a non-custodial sentence in exceptional circumstances."
- 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 children's barred list' and the 'adults barred list'. No order of the court is required.
- Sexual Offences Prevention Order (S104 Sexual Offences Act 2003)
- Dangerous Offender provisions apply. Sentences for public protection must be considered in all cases of rape.