Sentencing Rape

A Comparative Analysis

Graeme Brown

• Publisher: Hart Publishing
• Year: 2020
• ISBN:
  9781509917587
• Edition: 1
• Topic: Jura
• Subtopic: Strafrecht

This book presents an in-depth comparative study of sentencing practice for rape in six common law jurisdictions: England and Wales, Scotland, Ireland, Canada, New Zealand, and South Africa. It provides a thorough review of the medical literature on the physical and psychological effects of rape, the legal and philosophical literature on the seriousness of the offence, and the victim's role in sentencing. Given the increasingly common practice of perpetrators using mobile and online technologies to film or photograph the commission of sexual offences, the book examines recent socio-legal research on technology-facilitated sexual violence and considers the implications for sentencing. By building on recent scholarship on judicial decision making in sentencing and case law – comprising over 250 decisions of the relevant appellate courts – the book explores and critically analyses judicial approaches to rape sentencing. The analysis is undertaken with a view to suggesting possible reforms to rape sentencing in 'non-guideline' jurisdictions. In so doing, this book seeks to establish general principles for sentencing rape, assisting in the imposition of proportionate sentences. This book will be of interest to judges and practising lawyers; to those researching criminal law, criminal justice, criminology, and gender studies; and to policy makers, including sentencing councils and commissions, in common law jurisdictions worldwide.

1

Sentencing Rape

An Introduction to the Study

On 29 April 2016 at the High Court at Aberdeen, Justinas Gubinas, Ovidijus Kavaliauskas and Nerijus Radavicius were convicted of sexually assaulting and repeatedly raping a young woman, RD, at a farmhouse near Fraserburgh, Aberdeenshire. The charge narrated that the three accused committed the offences ‘while acting together, while [RD] was intoxicated and incapable of giving or withholding consent’. The parties met in a nightclub. The victim, who was heavily intoxicated, left the nightclub in a car with the three accused, thinking that she was going to a party. She was, in fact, taken to the remote farmhouse where the offences took place.

The victim gave at trial evidence that she was forced to consume more alcohol and thereafter forced to participate in various sexual acts against her will. In particular, the victim was coerced into sexual activity with two of the accused simultaneously. The accused recorded the offences on their mobile phones. Further video footage taken on mobile phones the next morning showed the first accused kicking the victim awake, before again forcing her into further sexual activity. The victim sustained bruising to her neck, lower back and buttocks, as well as vaginal injuries. Evidence was led from prosecution witnesses that, on returning home, the victim was distressed and had sobbed uncontrollably. The three accused maintained that the victim had consented to, and indeed instigated, the sexual activity. In convicting the three accused, the jury rejected their accounts.

The accused were sentenced some four weeks later, on 26 May 2016, at the High Court at Glasgow. In passing sentence, the judge made the following remarks:

‘The crime of which you have been convicted, rape, is a grave crime against which all women should be protected. That being so, the Court will not flinch from making it plain that such crimes will attract a significant prison sentence. In the case of each of you, I consider that there is no appropriate alternative to a custodial disposal … Taking all of these factors into account and exercising such leniency as I can in all the circumstances, I sentence each of you to a period of imprisonment of four years and six months.’¹

This case, reported as Gubinas and Radavicius v HMA,² is well known to Scottish lawyers as the leading decision on how juries are to approach the assessment of video evidence. Academic and practitioner commentary has focused on this aspect of the decision (eg Gordon, 2017: 484 and Shead, 2017: 827). Yet, despite the sentences imposed on the accused being viewed as ‘significant’ custodial terms by the sentencing judge, sentences of four-and-a-half years’ imprisonment for what amounts to the abduction and gang rape of an intoxicated victim raise important questions about how the crime of rape is sentenced. The decision in Gubinas and Radavicius highlights many of the key themes considered in this book. These include the seriousness of rape; the effect on the victim; the increasingly common tendency for sex offenders to film or photograph their offences; whether the sentences imposed by the courts adequately reflect the harm caused by rape and the culpability of the offender; the approach of the courts to sentencing cases featuring intoxicated or incapable victims; and how best to ensure that proportionate sentences are imposed for rape.

This book presents a comparative study of contemporary sentencing practice for the crime of rape in six common law jurisdictions: England and Wales, Scotland, Canada, the Republic of Ireland, New Zealand and South Africa. Building upon a thorough review of the medical literature on the physical and psychological effects of rape, the legal and philosophical literature on the seriousness of the offence, recent scholarship on judicial decision-making in sentencing and the sentencing case law of the various appellate courts, the book explores and critically analyses judicial approaches to sentencing rape in each jurisdiction.

The analysis is undertaken with a view to suggesting possible reforms to rape sentencing in ‘non-guideline’ jurisdictions, namely countries such as Scotland, the Republic of Ireland and Canada, which have traditionally eschewed numerical, prescriptive and presumptively binding sentencing guidelines, in which judges have enjoyed considerable discretion in sentencing and in which the sentencing environment has, accordingly, been relatively unstructured. In so doing, an attempt is made to establish general principles for sentencing rape in such jurisdictions to ensure that the courts impose proportionate sentences for the offence. Establishing such general principles will also achieve a level of consistency and predictability in rape sentencing, insofar as this is possible and desirable.³

It will be argued that reform of sentencing practice for rape in certain jurisdictions, including Scotland, is urgently required. Unlike their counterparts in jurisdictions such as New Zealand, Scottish judges, for example, do not have the benefit of guidelines when sentencing rape. Such appellate guidance that does exist, in Scotland at least, does not reflect the seriousness of the offence as measured by the physical and, in particular, the psychological harm caused to victims nor does it reflect modern societal attitudes towards the offence.

Having compared sentencing practice for rape across the various jurisdictions, whether in the form of general principles, appellate guideline judgments, formal numerical guidelines issued by sentencing councils, or mandatory and minimum sentences set by the legislature, the book considers what form the proposed sentencing guidelines should take. It is argued, following O’Malley (2011), that to comply with the demands of justice, sentencing must remain discretionary and the selection of sentence in specific cases must remain exclusively a judicial task. This book argues against adopting the current system of prescriptive, numerical and presumptively binding sentencing guidelines devised by the Sentencing Council for England and Wales. It is argued that under the present English system, consistency and predictability of sentencing outcomes are achieved by standardising penal decisions (see Brown, 2017a and Cooper, 2008 and 2013). This approach, it is suggested, is contrary to the traditional focus by courts throughout the common law world on the attainment of individualised justice.

There is, however, a clear need for judicial discretion in rape sentencing to be structured by appellate guidance to allow judges to exercise principled discretion (O’Malley, 2001: 35). Following Harris and Gerry (2013: 241–42) this book argues that what is required is a ‘behaviour-based’ approach to rape sentencing: offending should be categorised by reference to the true character of the offence in question, thereby achieving consistency in sentencing (insofar as possible) while also ensuring that neither victims nor offenders are unjustly treated (2013: 242).

The Value of a Comparative Analysis of Rape Sentencing

Freiberg (2002: 237) considers that most countries tend to be ‘juricentric’ in their sentencing practices and their criminal justice systems ‘solipsistic’. In England and Wales, this criticism has been directed at the Court of Appeal (Criminal Division), both for its apparent unwillingness to consider the sentencing jurisprudence of other jurisdictions in the course of its judgments (Brown, 2013: 676–77) and, more generally, for its refusal to engage with academic writings. Ashworth, for example, notes that:

‘I’ve had a book on sentencing since 1983 [viz. Sentencing and Criminal Justice], publishing regular [updates] and I’ve never once been mentioned in any court judgment – not once … [The judges] are not interested in critical commentary’ (Ashworth, 2013a).⁴

Sentencing is, however, one area of law and social policy that lends itself particularly well to comparative treatment. O’Malley (2008: 15) makes the important point that although laws and structures may vary from one country to another and different terminology may be used, we are all struggling with the same fundamental questions: why punish? What range of penalties should be available? When is a custodial sentence appropriate? How, if at all, should judicial sentencing discretion be structured (see also Dubber, 2006: 1309)?

Michael Tonry has stressed the importance of scholars, policy makers and practitioners looking across national and jurisdictional boundaries to see what is happening elsewhere, why and with what effect (Tonry, 2002: xxvii). Comparative analyses are of particular benefit if they suggest best practice or ways in which one system may learn from another (Roberts, 2019: 231). In discussing the benefits of comparative analysis in sentencing research, Tata (2002: 10) suggests that a comparative approach places developments in one’s own jurisdiction in perspective, while also allowing us to raise our eyes above the parochialism of our taken-for-granted assumptions about sentencing law and practice. In a similar vein, Lord Reed, President of the UK Supreme Court, observes that both academics and the courts open themselves to charges of parochialism if they fail to consider the approaches currently adopted in other comparable jurisdictions. His Lordship explains:

‘I do not mean that we should reach for off-the-shelf solutions from elsewhere without considering whether they actually provide the best way forward. But we should be willing to consider the possibility that we might learn from the experience of other jurisdictions’ (Lord Reed, 2015: 13; see also Lord Carloway, 2013: 10 and Lord Gill, 2016: 17–18).

Davies et al (2002: 273) remark, in a different context, upon ‘the problems of cultural relativity and system difference which make life hard for the comparative scholar’ and Nelken (2012: 141) highlights the difficulties caused by ‘cultural variability in ideas and values’. Such concerns do not feature to any great extent in a comparative study of sentencing practice for rape, however, for the simple reason that the offence is, or ought to be, uniformly viewed with the utmost seriousness across jurisdictions. Feinberg, for example, includes rape on a shortlist of offences that are crimes ‘everywhere in the civilised world’, the de-criminalisation of which ‘no reasonable person could advocate’ (Feinberg, 1984: 10). Von Hirsch et al (2005: 210) consider rape to be one of the most demeaning impositions imaginable (see also von Hirsch and Jareborg, 1991: 26), while Gardner and Shute (2000: 193) observe that rape is arguably never excusable and is probably amongst those wrongs which are never justifiable.⁵

Similarly, while major differences in the definitions of offences between jurisdictions can cause problems in some areas of comparative sentencing research (see Freiberg, 2002: 241–42), rape is a ‘universal crime’ (Terblanche, 2006: 2). Rape tends to be defined in broadly similar terms across the jurisdictions examined in this study. A legal definition of rape in each jurisdiction is provided in the relevant chapter, the focus of this book being rape broadly understood as penetration of the vagina, anus or mouth by the offender’s penis, without consent.

There is accordingly a high degree of what Nelken terms ‘functional equivalence’ regarding the seriousness with which the courts in common law jurisdictions view, or purport to view, the offence of rape (Nelken, 2012: 149; 2002: 332; see also Örücü, 2007a: 50–53). A corollary of the seriousness with which the offence is viewed is that there is less scope in this study for falling foul of the danger of ‘ethnocentricity’ (see generally Nelken, 2017: 423; 2009: 291–92, 306–7; and 2000: 10). While all jurisdictions in this study regard rape as a particularly serious offence, the study seeks to compare and contrast the responses of the courts to the offence through, for example, the issuing of guideline judgments; the use of sentencing guidelines prepared by a sentencing council or commission; or the application of legislative provisions setting out mandatory and minimum sentences. Patterned differences in approaches to rape sentencing are thus considered against a background of otherwise broadly similar social conditions (see Nelken, 2002: 332 and Dubber, 2006: 1308).

This book, therefore, compares rape sentencing across the six common law jurisdictions in an attempt to learn from their practice and to challenge and improve the way in which cases of rape are sentenced (see Nelken, 2009: 291 and 2007: 3, 17–18). The aim is to compare approaches to sentencing rape for the practical purpose of suggesting reform of how the offence is sentenced in jurisdictions that do not have formal systems of sentencing guidelines (see generally Nelken, 2007: 12–13, 32; 2000: 11 and Örücü, 2007a: 44, 55 and 2007b: 413, 415–16). This is achieved through what Nelken terms a ‘legal comparativist’ approach: this work seeks to classify and learn from the rules, ideals and practice of sentencing in the six jurisdictions (see Nelken, 2017: 419 and 2012: 144 and 147).

The jurisdictions selected for comparison were chosen due to their having similar sentencing traditions and, broadly, similar legal cultures (see Reed, 2015: 13 and Roberts, 2009: 232). Judges in each jurisdiction have traditionally enjoyed a wide sentencing discretion. Yet to understand the way in which those convicted of rape are sentenced in each jurisdiction, it is important to clarify how the sentencing contexts differ between the various jurisdictions (see generally Davies et al, 2002: 261 and 272). In particular, one must appreciate the cultural context of the policies, procedures and practice of sentenc...