So, rape is perhaps not over-represented in the statistics. However, looking at sexual offences more widely, there are a further 14 referred sentences involving other sexual offences (including indecent offences and exploitation for the purposes of trafficking). That means that nearly a third of the sentences referred included at least one sexual offence. Should we be worried?

It is a concern that the Court of Appeal has to correct sentences whether by increasing an unduly lenient sentence or reducing a sentence on appeal but the fact that some are altered does not mean that all sentencing is wrong. In the week we were asked to write this article, we were also asked whether all rapists should receive a life sentence as a deterrent. Meanwhile, one judge discounted a sentence on the basis that a victim was “willing” and one of us represented a man who was given 12 years for consensual underage sex.


Sentencing is a difficult task. Every case is fact-specific. All rapes are serious but not every rape is the same. Is it more serious to be attacked by a stranger or by someone you know and trust? Is it worse to be raped in your own home or in a public place? Does it make a difference if no violence is used? How far should the impact on a victim affect the sentence? These are questions which arise following pretty much every rape conviction; the judge is faced with a set of facts which s/he has to fit into the correct sentencing bracket. It is also worth remembering that although there are clearly predatory repeat rapists, many rapes happen spontaneously (perhaps after a night out drinking) so sentencing policy cannot deter every perpetrator and it would be wrong to seek to deter people from simply having sex in drink.

Rape pursuant to s 1 of the Sexual offences Act 2003 involves the penetration of the mouth, vagina or anus when the complainant does not consent and the defendant does not reasonably believe there was consent. Thus a victim can be a man, woman or child (although for children under 13 there is a separate category of “statutory” rape where a child of that age is effectively deemed not to consent). Dealing in this article with adult rape, it is a common misconception that a rape is proved when the victim is proved not to have consented. In many cases the issue at trial is what the defendant believed. Quite properly, no one is convicted where they genuinely believe this was a consensual event or where the jury cannot be sure one way or another. For those convicted, the conclusion of the jury is that the penetration was deliberate or reckless and it was obvious that the victim was not consenting.

Sentencing guidelines

The first step in any sentencing exercise is to remember that there are categories set out in the sentencing guidelines. This does not mean that any rape is not serious, merely that there are scales of sentence to take into account aggravating and mitigating features. Next it is worth remembering that in the drive for consistency it is sometimes forgotten that sentencing is a human process. As Edward Luttwak said: “Everything we value in human life is within the realm of inefficiency – love, family, community, culture, comfortable old shoes.”

It might seem inefficient to have ranges of sentence and to have a system of appeal to correct sentencing errors but guidelines are guidelines and not tramlines. It is important to ensure that any individual is sentenced for what they have done in the light of who they are. So, the offender with a criminal record receives a longer sentence than a man of good character and a serial rapist is considered to be automatically dangerous whereas a remorseful, one-off rapist may be capable of rehabilitation.

So what was it that sparked this latest debate on rape sentencing?...Newspaper headlines that a judge reduced a sentence for rape on the grounds that the complainant was “willing”. From the reports this was a case of statutory rape (in that the victim was under 13) but it was accepted by the prosecution that she was a willing participant in what occurred. The defendants were remorseful, believed she was 14 (which is no defence) and had pleaded guilty at the earliest opportunity. The reports refer to the sentencing judge finding exceptional features in the case to justify a reduction in sentence for the two defendants to 40 months each, despite their having filmed the sexual activity and circulated it.

Sentence will depend in part on the judge’s view of the facts, and the judge will almost always have seen and heard more than will appear in a newspaper report – for instance, in the case referred to above, the judge had had an opportunity to view the victim’s evidence (as it was presumably recorded onto DVD) so could reach his own conclusions about her apparent age and her account of the incident.

Difference in perception

To give another example, in a recent case where one view of the evidence was that the defendant was genuinely attracted to the complainant and, in an excess of passion, carried on regardless when she said “no”, the judge took the view that she was vulnerable, had been groomed and was attacked. The difference in perception of what went on will make a real difference to the sentence and we will never know the basis upon which the jury convicted. It follows that we have to accept that someone has to do the job of being a judge and, since they are also human, we have to accept from time to time that they make errors in sentencing. This might be an error of bias to the prosecution (a manifestly excessive sentence) or giving a defendant the benefit of the doubt on the extent of his intention (an unduly lenient sentence). Fortunately that’s what we have the Court of Appeal for.

Despite tighter and tighter sentencing guidelines, cases will stubbornly continue to involve real people in really different circumstances. Dealing with people is one thing that a computer matrix cannot fairly provide. It is interesting to note that the sentencing guidelines make no reference to filming a sexual assault being an aggravating feature when it comes to sentence. It fell to the Court of Appeal to fill that gap (see Attorney-General’s Reference (Nos 73, 75 and 03 of 2010) The Times, March 28, 2011); even the Sentencing Guidelines Council (as it then was) is fallible. The tighter the guidelines the more difficult it is, in our view, for judges to dispense justice.

US experience

To answer the question as to whether all rapists should receive a life sentence we need only to go to the United States. Even in some of the less enlightened states it has been found that reoffending reduces with shorter sentences and community penalties. In recent years, Texas has strengthened alternatives to imprisonment and achieved significant reductions in crime while avoiding more than $2bn in taxpayer costs that would have been incurred had the state simply constructed the more than 17,000 prison beds that a 2007 projection indicated would be needed. Serious property, violent, and sex crimes per 100,000 Texas residents have declined 12.8% since 2003, according to Texas public policy perspective by Marc Levin, director of the Center for Effective Justice.

This does not mean we advocate a non-custodial sentence for any rape but the idea of throwing away the key in every rape case fails to differentiate between types of offences and types of offender and could lead to grave injustice. Victims and offenders are individuals whatever the crime and however committed. The guidelines for sentencing adult rapists are tough. It falls on the judges to be fair and just. If this results in the odd error that does not mean that all rape sentencing is unduly lenient, merely that we are still all human.

Felicity Gerry and Catarina Sjölin are barristers at 36 Bedford Row and co-authors of The Sexual Offences Handbook