New proposals give greater focus to impact of sex offences on victims
The Sentencing Council has launched a consultation today on its proposals for how guidance for courts on sexual offences should be brought up to date.
It aims to give more focus to the impact on victims and reflect advances in technology, while making sure offenders are dealt with effectively.
Its draft sentencing guideline, which covers a large number of offences including rape, child sex offences, indecent images of children, trafficking and voyeurism, proposes a variety of changes to how offending is dealt with by the courts.
The approach to assessing what victims have been through has been expanded to take into account a full picture of the harm suffered. The Council believes that as well as physical harm, the psychological and longer term effects on the victim should be more fully reflected; factors such as stalking and previous abuse including violence can make the victim more vulnerable to harm and are set out as factors that can be taken into account.
An expanded approach to how courts assess offenders is also proposed so that courts look at the full context of their behaviour and motivation in committing any offence. This means giving focus to important aspects like grooming activity by both individuals and gangs, the targeting of vulnerable victims such as those in care and the abuse of trust and positions of power so that these are clearly reflected in sentence levels.
Public protection is a key element to the Council’s proposals and the approach to setting sentencing levels in the draft guidelines has been to reinforce the importance of firm and proper punishment and the prevention of reoffending. This is either through significant custodial sentences or treatment programmes that will address the offender’s behaviour.
The review of sentencing guidelines for sex offences has also come about because the nature of offending has changed with, for example, the increased use of technology in offences involving indecent images of children and the facilitation of sexual exploitation and grooming of children. The Council also has an increased understanding of how offenders use technology to target children. The guidelines reflect these developments so they cover the ways these crimes are committed today.
The draft guideline is subject to a 14-week public consultation, which discusses how the courts should approach sentencing decisions, details the rationale behind the Council’s thinking and explores the many issues involved in the sentencing process. Anyone can give their views on any of the offences covered by the guideline; due to the size and scope of the consultation, it has been designed so that respondents can focus on particular offences. People can respond by going to www.sentencingcouncil.org.uk
Sentencing Council member Lord Justice Treacy said:
“We’re improving guidance for courts to help them deal with these incredibly complex, sensitive and serious offences.
“The perspective of victims is central to the Council’s considerations. We want to ensure sentences reflect everything the victim has been through and what the offender has done. We are looking at the whole context, not just the physical offence but also the tactics employed by offenders like grooming activity, the targeting of vulnerable victims or abuse of a position of trust.
“No one wants more people becoming victims, so protecting the public is a vital part of our proposals, whether this is by jailing offenders, or through rigorous treatment to stop them reoffending.
“This is a consultation: we want views on this extremely important subject.”
The guidelines will replace existing guidance which was issued following the Sexual Offences Act 2003 by the Sentencing Council’s predecessor body. Sentencing levels for sexual offences have been increasing since the Act, and current sentencing guidelines, came into force, and the new draft guidelines reflect these increases. They do not include any reductions in sentences from current sentencing.
The draft sentencing guidelines cover 54 very varied offences and aim to ensure appropriate sentences are given for the variety of manifestations of each. The Council considers that all sex offences are serious, so a baseline of harm is assumed in relation to all categories of offence, and any aggravating factors then push offenders into higher categories.
When the definitive guidelines come into force, it will apply to all offenders, regardless of when offences took place, so while offenders will be subject to the law at the time of the offence, the guidelines will bring a modern and victim focused approach to how historic offenders are dealt with by the courts.
The main changes to the guideline in relation to some of the specific offence areas are outlined below:
The guideline recognises the wide range of circumstances in which this offence occurs. It covers not just the stereotypical stranger rapes, but takes into account that most rapes are carried out by someone who the victim knows, and that many occur within families.
The guideline takes a broader approach than existing guidance to cover effectively this range of scenarios, expanding the focus on factors that relate to rapes committed by people known to their victims, such as stalking and harassment and previous violence against the victim.
A number of new factors are also being proposed. These include filming or photographing a rape, which has become more common since the current guideline was published, and rapes committed by groups or gangs of men. Those who target vulnerable victims, such as those who have experienced habitual sexual abuse previously which makes them especially prone to be victimised, will also be treated more harshly.
In the existing guideline, repeated rape of the same victim over a course of time or rape involving multiple victims attracts the highest guideline sentencing levels – 13-19 years. The Council’s view is that those levels should be available to judges when sentencing for a single rape and the proposed guideline reflects that view.
In relation to sexual assault, the Council believes that the current guideline takes too narrow an approach, focusing essentially on the nature of the physical activity done by the offender. While this is a key factor, the Council is of the view that considered alone, it can make it difficult for judges to reflect fully the harm caused to the victim, in particular the fear and intimidation that may be suffered.
The new draft guideline aims to reflect both the emotional and physical harm that can be caused. Included therefore is a new factor that makes the offence more serious if violence is threatened, or threatening or violent sexual language is used – the Council believes that the fear of escalation of an attack is likely to increase the psychological harm on a victim.
Other factors that take the offence into a higher sentencing level have also been introduced such as the location and timing of offence, forced entry into the victim’s home, additional degradation or humiliation and repeat victimisation by the same offender. This acknowledges the fact that a significant proportion of offences are committed by people known to the victim.
Child sex offences
The aim of the proposals in relation to child sex offences is to help courts assess their full impact on victims. The Council wants courts to increase the focus on the offender’s behaviour and to look at how children may have been groomed or exploited.
The draft guideline also states clearly that where adults abuse a position of trust or target a vulnerable child – such as those in care – these factors should increase the sentence level.
In addition, the Council wants to highlight the issue of victims’ vulnerability to ensure that the highest sentences are given to offenders who target children in care, or children whose home life is chaotic or dysfunctional, knowing that they are likely to be more susceptible to the attention of an adult who befriends them and claims to care for them.
It further proposes several other new factors that show the offender’s culpability, such as evidence of grooming, the use of alcohol or drugs to facilitate the offence, and the use of gifts or bribes to coerce the victim.
The proposals also aim to make sure that longer term harm to children is considered by courts, such as having to leave their home or school, which can have a significant impact on their family, friendships, support networks and education.
Unlike the current guideline, in which offences against children over 13 are placed alongside offences committed against those under 13, the Council feels that as there are issues and sensitivities unique to offences against children under 13 they should be handled separately. The under 13 offences brings under its umbrella cases of victims groomed into acquiescing to sexual activity as well as those subject to forced sexual activity.
Indecent images of children
Advances in technology have meant increases in offences committed through the internet since the current legislation came into force in 2004. The Council wants to make sure guidance is up to date to cover the ways these crimes are committed today and in the future.
Current guidelines focus solely on the quantity and seriousness of the images and offender is caught with. As well as considering these factors, the Council’s proposals go further in order to reflect the full context of the offence - for example, by including new aggravating factors related to involvement in paedophile networks or abuse of a position of trust to create images or videos.
The draft guideline also simplifies the way in which images are assessed since classifying images is a difficult and resource-intensive job for people investigating and prosecuting offenders.
The draft guideline suggests the introduction of the option of prison at every level of offence, so that sentencers can use this whenever they feel it is appropriate. In current guidelines there are categories of offence where only non-custodial options are available.
Exploitation and trafficking
The draft guideline aims to ensure that those who exploit others sexually for commercial gain get appropriate sentences. The proposals make effective distinctions between those who are running exploitation operations and those who are involved because they have been coerced or exploited. The big players will get the longest sentences and only those very low down in any operation, who may have been coerced, would be likely to avoid a jail sentence.
Offences involving children are particularly heinous and the Council is proposing that even those with a low level involvement in such an offence are jailed.
Notes to editors
1. The consultation starts on 6 December 2012 and closes on 14 March 2013. It is open to both criminal justice professionals and members of the public. People can respond by visiting www.sentencingcouncil.org.uk and choosing either the full consultation or the simpler online version which allows respondents to give their views on individual offences.
A consultation paper, resource assessment, equality impact assessment, statistical bulletin, research bulletin and an online questionnaire are available during this consultation period. These will be available at: www.sentencingcouncil.org.uk from 6 December 2012.
2. The draft guideline covers a large number of offences, mainly in the Sexual Offences Act 2003, but also includes some offences in the Criminal Justice Act 1998 and Protection of Children Act 1978. Offences include rape, assault by penetration, sexual assault, child sex offences, brothel keeping, controlling prostitution, trafficking and indecent images of children. Full information on each offence can be found in the consultation documents.
3. Sentencing guidelines must be followed, unless a judge or magistrate feels it is not in the interests of justice to do so. If a judge or magistrate believes that a guideline prevents the correct sentence from being given in an exceptional case, he or she can sentence outside of the guideline. Guidelines set sentencing ranges within current legislation. When legislation changes, guidelines are amended as appropriate.
4. The Sentencing Council is a non-departmental public body created by the Coroners and Justice Act 2009 to bring together the functions of the two previous bodies, the Sentencing Guidelines Council and Sentencing Advisory Panel, which were disbanded. The Sentencing Council is a more streamlined body with a greater remit to: take forward work on sentencing not only through improvements to guidelines but also through the development of a robust evidence base; and engaging more with the public to improve understanding about sentences. Sentencing guidelines issued by the Council apply to England and Wales only.