Sexual offending is an area of growing public concern and accounts for a rising proportion of sentencing in Scotland’s courts.
Each offence is different. However, every such case is complex and can involve a wide range of circumstances, requiring challenging and difficult decision-making at the point of sentencing.
Research shows that the process can leave victims, and others involved in the case, looking to better understand the sentence handed down and the reasoning behind it. This is one of the reasons the Scottish Sentencing Council is developing a series of sentencing guidelines on sexual offending.
The first guidelines cover offences of rape, and drafts of these have been published today. The proposed guidelines are available to view on the council’s website and a public consultation is under way to allow people and organisations the chance to have their say before they are finalised.
Scottish Courts and Tribunals Service data show that over the past four years, the average number of court disposals for rape was 98 per year, an increase from 57 for the previous four-year period. For the prison sentences imposed (excluding forms of life sentences), the average sentence was equivalent to just under six years.
The council has closely examined the existing case data and conducted other research in developing the guidelines, helping to ensure that they are grounded in evidence.
In addition, we have engaged with a wide range of people and organisations including members of the judiciary, victim organisations, and others across the justice sector, and also commissioned independent academic research into the sentencing of sexual offences.
The newly published drafts include two separate guidelines: one which covers offences of rape, and another which deals with offences of rape of a young child under the age of 13. These are different offences in law and are covered in sections 1 and 18 respectively of the Sexual Offences (Scotland) Act 2009. The guidelines will also apply to their common law equivalents prior to the Act being introduced.
The guidelines set out a framework for the sentencing exercise. They provide sentencing ranges of imprisonment for the offences which stretch up to 13 years’ imprisonment for rape, and 14 years’ imprisonment for rape of a young child.
Judges can, however, select sentences outwith the ranges if they consider that the circumstances merit it.
The maximum sentence for rape is set by law at life imprisonment. The guidelines also include reference to a form of life sentence called an order for lifelong restriction, which involves an offender being subject to risk management for the rest of their life after spending a minimum period of time in prison.
Extended sentences, which protect the public by placing an offender under supervision for a period of time on their release from prison, are also included.
The guidelines explain the different factors that might be taken into account by a judge when sentencing rape offences, and how these might affect the sentence handed down. For example, if an offender uses violence or threats in the commission of the offence, the guidelines provide that it should be treated more seriously, which may lead to a more severe sentence.
This is also the case in offences where the perpetrator abuses a position of trust, spends time planning an attack, administers drink or drugs to the victim to facilitate the offence, or causes severe physical or psychological harm.
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Setting all of this out in the guidelines will help judges to decide the most appropriate sentence in these sensitive and complex cases, and will serve to inform victims and the public about sentencing.
Recent research commissioned by the council looked at the experiences of victims of sexual offences and found that they often struggle to understand sentencing due to a lack of clear information before, during and after the court hearing.
As with all of our guidelines, these guidelines are intended to be concise, easy for sentencers and others to refer to in court, and accessible to the public. We therefore hope that they will help to promote greater consistency and predictability in sentencing, and will provide victims, and others, with a better understanding of the reasons behind any decision.
In order to ensure that they are fit for purpose, we want as many people as possible to have their say on the proposed sentencing ranges and the different issues that should be taken into account by judges.
The topics are difficult and sensitive and we appreciate that giving consideration to them is a significant task. However, the public consultation is a key part of guideline development.
An open and transparent consultation process helps to ensure that public values are considered in the creation of sentencing guidelines.
The council has publicly consulted on all of its guidelines so far and every one now in force in Scotland was amended in some way following the consultation exercise.
The feedback we receive really does matter and can have a direct impact on the guidelines ultimately introduced to Scotland’s courts.
Every response to the consultation will be given careful consideration. Participants do not need to be legally trained or have other expertise or experience; all views are welcome.
The responses will be independently analysed before the guidelines are finalised and submitted to the High Court for approval.
The council is also continuing its work on guidelines for other sexual offences, including sexual assault and offences involving indecent images of children, as well as further guidelines on domestic abuse, sentencing following a plea of guilty, and environmental and wildlife crime.
The consultation documents, available on the council website, contain all of the information needed to take part. I would urge people from all backgrounds to take time to read the documents, complete the consultation and play their part in shaping these important guidelines for Scotland.
The consultation on the guidelines will run for 12 weeks until Friday, October 18, and is available on the Scottish Sentencing Council website at scottishsentencingcouncil.org.uk.
Victoria Young is the Scottish Sentencing Council’s advocate member
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