12 December 2013
New sentencing guideline gives greater focus to impact of sex offences on victims
The Sentencing Council has published a new sentencing guideline for sexual offences which will help ensure appropriate and consistent sentences for sex offenders.
The guideline covers more than 50 offences including rape, child sex offences, indecent images of children, trafficking and voyeurism, and brings significant changes to how offences are considered by the courts.
It marks a step forward in how courts take into account the impact of sex offences on victims. As well as physical harm, the new approach will reflect more fully the psychological and longer term effects on the victim, enabling courts to take into account the true extent of what the victim has been through.
The guideline also takes an expanded approach to how courts assess offenders, looking at the full context of offending behaviour and motivation in committing any offence. This means giving more significant emphasis to important aspects like grooming activity by both individuals and gangs, the targeting of vulnerable victims such as those in care and offenders’ abuse of trust and positions of power or status so that these are clearly reflected in sentence levels.
The guideline makes it clear that victims are not responsible for what has happened to them. This is particularly emphasised in relation to offences committed against children. In the previous guideline there were child sex offences labelled as involving ‘ostensible consent’ – that is, where a child over 13 has apparently agreed to sexual activity. The Council believes that this is the wrong way of looking at these offences as children do not consent to their own abuse. The new guideline therefore looks more at the offender’s actions and behaviour towards the victim.
The new guideline also brings increases in sentencing starting points and sentencing ranges for some offences. For example, in relation to rape, the new guideline allows top category sentences with a starting point of 15 years. The previous guideline only allowed sentences with this starting point for multiple rapes. Sentences of 20 years and above are also now recommended for campaigns of rape. In addition, the worst cases of assault by penetration can now receive the same sentences as rape.
The guideline simplifies the system for assessing indecent images of children which will make analysis of imagery much easier when evidence is being compiled against someone being prosecuted. The new guideline moves away from concentrating on just the number of images and gives more emphasis to what the offender is doing with the images – possessing, distributing or creating – to help assess the offending behaviour and appropriate sentence level.
The guideline also takes account the increased use of technology in offending since the previous guideline was issued in 2004. In relation to many of the offences, a new aggravating factor in the guideline is of recording the crime as filming and photographing victims has become more common since the previous guideline was produced.
Due to the growth in online offending, the Council has ensured that guidelines, such as for sexual activity with a child, cover offending committed remotely such as via webcam. It also takes into account aspects like offenders lying about their age, grooming via social media or asking children to share indecent photos of themselves. Factors like the encryption of imagery and recording of an offence, which is increasingly common, will also increase sentence length.
While the guideline covers the ways these crimes are committed today, it remains flexible enough to deal with future technological evolution.
Public protection is central to the guideline which reinforces the importance of proper punishment and the prevention of reoffending, either through significant custodial sentences or rigorous treatment programmes that will address the offender’s behaviour.
This is the largest and most complex guideline the Council has produced and it was created after a very substantial period of consultation with criminal justice professionals and research with victims and judges. It was also subject to a public consultation, and responses were received from a very wide range of people including groups representing victims, judges, magistrates, lawyers, the police, NGOs, the Government, academics, medical practitioners as well as the wider public. The Council has made many changes to the guideline as a result of their views, for example, to the factors that should be considered in relation to harm and culpability, sentence levels and mitigating factors. Changes include:
- allowing proper consideration of the vulnerability of the victim such as through age or disability or a background of physical or emotional abuse;
- broadening the wording of various aggravating factors to ensure they cover the great range of offending, for example in relation to abuse of trust where an offender has abused the trust that may come with status or image;
- ensuring good character can now be an aggravating factor when it has facilitated an offence – such as when it leads a child to trust the offender, makes it harder for them to report an offence or be believed; and
- adding various new aggravating factors. In relation to exploitation offences, ‘threats of exposure’ to family or others is now included to cover situations where this is used as a further means of controlling victims.
Chairman of the Sentencing Council, Lord Justice Treacy said:
“This guideline will make real changes to the way offenders are sentenced for these very serious, sensitive and complex offences. It will help judges and magistrates sentence in a way which protects our communities from this kind of offending and the suffering it causes.
“We have taken on board the views of victims, criminal justice professionals and the wider public to produce an approach to sentencing which people can understand and have confidence in. This approach will enable sentences that reflect what the victim has been through and take in a full profile of what the offender has done, such as grooming victims or abusing trust.
“No one wants more people falling victim to offenders who come before the courts, and public protection is central to this guideline, whether this is by jailing offenders or, where appropriate, imposing a rigorous treatment order and other restrictions to prevent reoffending.”
National Policing Lead for Violence and Public Protection Chief Constable David Whatton said:
“The new guidelines from the Sentencing Council show how well the Council listened during its consultation. The guidelines complement the new CPS and College of Policing guidance and are indicative of the move across the criminal justice system to ensure that police, prosecutors and judges take a victim-centred approach when dealing with sexual offences while still ensuring the integrity of the justice system.
“Across the justice system, changes have been made to ensure that the alleged offenders’ behaviour and the context and circumstances of the incident are scrutinised, rather than the credibility of the victim. These changes are intended to ensure that across the board our response to sexual offenders is robust and victims get the support they need. The new Sentencing Council guidelines will ensure offenders who are brought to justice are dealt with appropriately.”
Barnardo’s deputy director of strategy Alison Worsley, said:
“It is difficult to imagine the torment experienced by the vulnerable victims of crimes such as these. The publication of this new sentencing guideline will help to ensure the focus is on the perpetrator and not the victim.
“As the guideline emphasises, it is plain wrong to imply in any way that the experiences of sexually exploited children are something they bring on themselves. Barnardo’s Remember They are Children campaign showed that no child can ever truly agree to their own abuse.
“If we are to turn the tide in the fight against these awful crimes it is vital that victims feel they will be taken seriously and dealt with sensitively at all levels of the justice system.”
The guideline will come into force in courts in England and Wales in April 2014 and replace existing guidance which was issued by the Sentencing Council’s predecessor body following the Sexual Offences Act 2003. Sentencing levels for sexual offences have been increasing since the Act, and existing sentencing guideline, came into force, and the new guideline reflects these increases. They do not include any reductions in sentences from current sentencing.
The new guideline covers 54 very varied offences and aims to ensure appropriate sentences are given for the wide spectrum of offending that takes place. However, where judges feel that they are dealing with an exceptional case, they can sentence outside the guideline ranges and up to the maximum permitted by law.
They will apply to all adult offenders, regardless of when offences took place, so while offenders will be subject to the law at the time of the offence, the guideline will bring a modern and victim-focused approach to how historic offenders are dealt with by the courts.