Rape is regarded as one of the most serious crimes in criminal law even when consisting of no other further violence than the act of rape itself. It is recognised as causing bodily harm and emotional, psychological damage which may be long-term.
Sexual offences are recognised as being of the utmost seriousness. Many offenders are repeat offenders. In recent decades, the phenomenon of multiple offences, often involving events that occurred many years before, have been common, particularly in relation to child sex abuse. A large number of counts may be charged.
The maximum penalty for rape is life imprisonment. The Supreme Court has held that other than in highly exceptional circumstances, rape should attract an immediate custodial sentence. Sentences of 10 to 20 years are commonly imposed.
While the Judge’s sentence must be such as to meet the circumstances, a substantial, immediate custodial sentence will nearly always be required in the case of rape, other than in wholly exceptional circumstances.
The function of the court in imposing a sentence in rape involves punishing the offender, protecting society and offering the possibility of rehabilitation of the perpetrator.
An admission of guilt is an important mitigating factor as it reduces the trauma of a trial and cross-examination. However, the sentence must be proportionate to the circumstances. Courts are to take into account the effect of the sexual offence on the victim.
A suspended sentence could only be contemplated where the circumstances of the offence are completely exceptional, where the perpetrator has pleaded guilty in the circumstances, which involve additional, gratuitous humiliation or violence beyond that ordinarily involved.
The Supreme Court has acknowledged that in exceptional circumstances, a non-custodial sentence may be imposed. It is only in exceptional cases where there is a range of mitigating factors that come together that a noncustodial sentence might be considered. In one exceptional case, where a young man with general good character who raped a woman while asleep, pleaded guilty, and the Court of Criminal Appeal allowed seven months which he had served at the time of trial to be the total and suspended the balance of the sentence.
Lower sentence tends towards five years imprisonment. The absence of the mitigating factor of an early guilty plea would attract five to seven years.
A longer sentence is appropriate where there is more than the usual degree of violence on the part of the perpetrator, a greater particular effect on the victim or by convictions on a number of counts. A sentence of 11 years or more may be imposed where the facts involve unusual violence or premeditation. The nature of the victim, either being very young or old or the effect of the attack and the special nature of the violence and degradation might bring the sentence towards 15 years to life.
The sentence would be increased if there are additional further violence, assault, false imprisonment, threats and attempts to cause injury or murder. They would be significantly aggravating factors.
Life imprisonment may be imposed where a person has psychopathic tendencies or a gross personality disorder, such that he is a danger if he remains free.
Where a court is determining the sentence to be imposed on a person for a serious offence, the fact that the offence was committed or is part of or furtherance of the activities of a criminal organisation shall be treated for the purpose of determining the sentence as an aggravating factor.
Accordingly the court, except where the sentence for a serious offence is one for imprisonment for life or where the court considers there are exceptional circumstances which justify not so doing, impose a sentence that is greater than that which would have been imposed in the absence of such a factor. The sentence imposed shall not be greater than the maximum sentence permissible for a serious offence. A serious offence is one for which a person may be punished for imprisonment of four years or more.
The rape of a prostitute does not carry a reduced sentence as it might have, in the very distant past.
At common law, rape by a spouse was not a crime. The position was reversed by 1990 legislation.
Many of the cases have involved elderly accused, charged with multiple offences after many years. This is taken into account to a limited extend. In some cases, the failure to report may be because of a relationship between the offender and victim which is an aggravating factor.
A repeat offender is likely to be given a heavy custodial sentence. The previous offence is always almost a serious aggravating factor.
Attempted rape usually attracts a lower sentence but will generally be treated as a very serious crime. The level of violence, degradation and circumstanced will be relevant.
Statutory rape arises where a person cannot consent to sexual intercourse because of her age. Unlawful sexual intercourse with a female under 15 carries a maximum sentence of five years imprisonment on a first conviction, 10 years on a second conviction.
In the case of females under 17, the maximum sentence is two years and five years on a second conviction. The prosecution is to be within 12 months, in the case of a female aged between 15 and 17.
Sexual assault carries an imprisonment of up to 14 years and may be charged as an alternative and outside the 12 month period. The courts may adhere to the above prison sentence maximums in the case of sexual assault, which would have been the subject of a rape prosecution, but for the 12-month time limit.
Consent on the part of the female nor mistake as to age are not defences. The Supreme Court found the constitutionality of mistake as to age to be unconstitutional requiring amending legislation. Issues of mistake and consent are relevant to the sentence.
Even consent, however, or ostensible consent will not preclude custodial sentence in appropriate cases. This may occur where there is a significant age difference and particularly when the female is under 15 years of age. Where the offences are between two consenting teenagers, the male under older legislation is liable to be imprisoned while the female has no custodial liability. I
Imprisonment may be imposed if there is an element of exploitation such as a significant difference in age, e.g., a 16-year-old male and 13-year-old female or where there was evidence of the female being plied with alcohol.
Sexual assaults and indecent sexual assaults may range from momentary incidents to something more prolonged and violent circumstances. A single offence, minor in nature may attract a noncustodial sentence. A once-off offence of a relatively minor nature may lead to a short custodial or no custodial sentence.
Offences may range relatively from technical offences between persons who are not biologically related who consent to intercourse to violent, abusive relationships involving severe trauma. The latter would attract a very heavy custodial sentence.
The most serious manifestation of incest is child sexual abuse commonly perpetrated by the father of the victim where a female is between 13 and 16. Custodial sentences of three to five years have been imposed. The younger the victim, the more serious the offence and custodial sentences of six or more years have been imposed.
Child Sexual Abuse
The number of victims has arisen as an issue in historical cases of abuse. Multiple victims is a significantly aggravating factor. Breach of trust on the part of teachers, parents, priests and pastors, who look to adults for protection, makes the offences particularly serious.
A genuine effort of rehabilitation may be taken into account as a mitigating factor.
Multiple life sentences have been imposed in more serious cases of repeated child sexual abuse involving children between girls between 7 and 12 years.
See the section on sex offender’s register and sex offenders orders.
A phenomenon of recent years has been the grooming of victims through the Internet. This tends to show greater premeditation and planning and is an aggravating factor.
The consent of persons under 12 is likely to be wholly disregarded as a factor. In the case of persons closer to the age of 17, apparent ostensible consent is not valid may be weighed as a factor.