Judicial sentencing for rape can be an emotive subject. For some victims any length of sentence given to their abuser will “never be enough”, and the widely differing sentences handed down to different individuals have sometimes caused confusion, anguish and outcry among the public. In the interests of clarity we therefore offer this summary of present sentencing in England & Wales.

The offence of rape is defined in theSexual Offences Act 2003. (Its provisions need not be repeated here but are explicitly summarised in HMSO Explanatory Notes to Sexual Offences Act 2003).

The sentence for rape is not fixed by statutory law (as with for example murder), but is instead governed by judicial guidelines that take into account advice received from the government’s Sentencing Advisory Panel. The guidelines are determined by the Court of Appeal (Criminal Division) in decision and are binding on all lower courts.

General guidelines as to sentencing for rape were given in the case of R v Roberts and Roberts (1982), in which Lord Chief Justice Lane stated:

“Rape is always a serious crime. Other than in wholly exceptional circumstances, it calls for an immediate custodial sentence. . . . A custodial sentence is necessary for a variety of reasons. First of all to mark the gravity of the offence. Secondly to emphasis public disapproval. Thirdly to serve as a warning to others. Fourthly to punish the offender, and last but by no means least, to protect women. The length of the sentence will depend on all the circumstances. That is a trite observation, but those in cases of rape vary widely from case to case.”

More extensive guidelines were then set out in the case of R v Billam (1986) that were consistently applied by the courts until the most recent guidelines set out in R v Millberry (2002). These are the guidelines consistently applied today.

The maximum sentence for rape is life imprisonment. The minimum sentence for rape is not defined (although some custodial sentence will always apply). An internet posting by “paulinus” on the QI Talk Forum on 3 June 2008 summarised the difficult question of “minimum” sentencing as follows:

There is no “minimum sentence” for rape – although the sentencing guidelines suggest five years as a starting point, irrespective of whether the victim is male or female. The starting point can go up or down, depending on the presence of aggravating or mitigating features – see the court judgement in the appeal case of R v Millberry (2002) found on the England and Wales Court of Appeal (Criminal Division) Decisions database at:

www.bailii.org/cgi-bin/markup.cgi?doc=/ew/cases/EWCA/Crim/2002/2891.html

The starting point for sentence after a contested trial should be eight years if any of the following aggravating features are found:

• (a) the rape is committed by two or more offenders acting together
• (b) the offender is in a position of responsibility towards the victim (e.g., in the relationship of medical practitioner and patient or teacher and pupil), or the offender is a person in whom the victim has placed his or her trust (e.g., a clergyman, an emergency services patrolman, a taxi driver, or a police officer)
• (c) the offender abducts the victim and holds him or her captive
• (d) rape of a child, or a victim who is especially vulnerable because of physical frailty, mental impairment or disorder, or learning disability
• (e) racially aggravated rape, and other cases where the victim has been targeted because of his or her membership of a vulnerable minority (e.g., homophobic rape)
• (f) repeated rape in the course of one attack (including cases where the same victim has been both vaginally and anally raped)
• (g) rape by a man who is knowingly suffering from a life-threatening sexually transmissible disease, whether or not he has told the victim of his condition and whether or not the disease was actually transmitted.

So do the courts hand down appropriate sentences for rape? Given clear and strong guidelines, High Court judges have only to interpret and apply them correctly in all cases. And yet public confidence can be easily eroded by the slightest misunderstanding of a “light” sentence arising from one or another case. With perhaps some awareness of public concerns about judges’ “appropriate” sentencings for rape, Lord Justice Rose in R v Millberry (2002)also took the opportunity to explain the role of sentencing guidelines:

“Before concluding our general guidance with regard to sentencing on rape and turning to the cases of the individual appellants, we would emphasise that guidelines such as we have set out above can produce sentences which are inappropriately high or inappropriately low if sentencers merely adopt a mechanistic approach to the guidelines. It is essential that having taken the guidelines into account, sentencers stand back and look at the circumstances as a whole and impose the sentence which is appropriate having regard to all the circumstances. Double accounting must be avoided and can be a result of guidelines if they are applied indiscriminately. Guideline judgments are intended to assist the judge arrive at the current sentence. They do not purport to identify the correct sentence. Doing so is the task of the trial judge.”

Information collated on 23 July 2008

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