There is a probably a great number of things on your mind as you try to comprehend the situation you are in and the potential impacts of any upcoming criminal trial. Perhaps you are wondering, too, what sentence you could face if you are convicted. This article explores sentencing guidelines for rape in detail. It looks at the average sentence for rape, and the factors that the court takes into consideration when sentencing rape offences. It also considers some of the mitigating factors that might reduce a rape sentence and the impact of a guilty plea.
What type of actions are involved in a rape?
According to the law, a rape takes place where:
- The defendant intentionally penetrates the vagina, anus or mouth of the victim with his penis
- The victim does not consent to the penetration
- The defendant does not reasonably believe that the victim consents
The offence of rape is set out at Section 1 of the Sexual Offences Act 2003.
If a victim consents to sexual activity, they must:
- agree by choice to participate in the activity, and
- have both the freedom and the mental ability to make the choice
In order for consent for sexual activity to be valid, the person agreeing has to understand what is happening so that they can make an informed choice to agree to it. Where a person is drunk or under the influence of drugs, they may lose the capacity to consent.
The legal age for sexual activity is 16 years old. Therefore, if the victim is younger than 16, the law says that they are not capable of consent, even if they did actually agree to the activity. If the victim was under the age of thirteen, then a separate, more serious, offence applies: rape of a child under 13.
What is the average sentence for rape?
On average, a defendant will be sentenced to between 4 and 19 years’ custody for rape. The length of the sentence that is given will depend on the facts of the case.
The maximum sentence for rape is a life sentence. However, other than in the most serious of cases, a life sentence for rape is unlikely to mean that you spend the whole of the rest of your life in prison. If you are given a life sentence, you will usually spend at least 15 years in prison. The rest of your life will then be spent in the community on life licence. This means that if you commit a further offence, or if you otherwise break the terms of your licence, you could be recalled to prison.
How does a court decide on the seriousness of the rape offence for sentencing purposes?
When determining the sentence for rape, the court will consider two key factors: the harm caused to the victim and the culpability (blameworthiness) of the defendant.
Harm
Factors that increase the court’s perception of the harm caused to the victim by rape include:
- Severe psychological or physical harm
- Where the victim becomes pregnant or contracts a sexually-transmitted infection or disease (STI or STD) as a consequence of the offence
- Additional degradation or humiliation
- Abduction
- Prolonged detention or a sustained incident
- Violence or threats of violence, beyond that which is inherent in the offence of rape itself
- Forced/uninvited entry into the victim’s home
- If the victim is particularly vulnerable due to personal circumstances (however note that the sentencing guidelines for victims under the age of 13 are different)
When assessing the level of harm caused to the victim, the court will place the victim’s experience within one of three categories:
Category one is for the cases of the most serious harm; category three are the cases with less serious harm; and category two are cases that fall in the middle. Category two cases include at least one of the above factors, whereas category one cases either include the extreme nature of one of these factors, or a combination of more than one factor. A category three case will not include the factors listed above.
Culpability
The following factors will be taken to increase the court’s perception of the defendant’s culpability:
- A significant degree of planning
- If the defendant acted together with others to commit the offence
- Where the defendant used alcohol or drugs on the victim to facilitate the offence
- If the defendant abused a position of trust in order to commit the offence
- Where the defendant has previously committed violence against the victim
- If the offence was committed in the course of a burglary
- Where the defendant filmed or otherwise recorded the offence
- If the defendant was motivated by commercial gain, or subsequently exploited the offence for commercial purposes
- Where the defendant was motivated by racial or religious hostility, or hostility to the victim based on his or her sexual orientation (or presumed sexual orientation), transgender identity (or presumed transgender identity), or disability (or presumed disability)
When assessing culpability, if one or more of the above factors are present, the case will be considered a ‘category A’. If none of the above factors are present, the case will be considered ‘category B’.
How the court decides upon the seriousness of a rape sentence
Having made the assessment of the harm caused to the victim and the culpability of the defendant, the court balances these factors as a starting point for calculating the sentence. The court will do this with reference to a table produced by the Sentencing Council, which can be found here.
For example, if a rape case involves the abduction of, and violence against the victim, it is likely to be a category one case in terms of harm. If the case also involves planning and premeditation by the defendant, it is likely to considered category A culpability. This would lead to the starting point of the sentence being placed at 15 years’ custody, with the sentence range between 13 and 19 years’ custody.
Meanwhile, in another rape case where the rape resulted in a pregnancy but the defendant did not commit any violence against the victim, and no other factors elevating harm were present, the case might be considered category two for harm. If the rape was a spontaneous act by the defendant, with no evidence of a motivation that would heighten the level of culpability, the case might be considered category B for culpability. In such a case, the starting point for the sentence would be 8 years’ custody, and the sentence range would be 7 to 9 years’ custody.
In a case where there were no factors present that heightened either culpability or harm, the starting point for a sentence would be 5 years’ custody, and the sentence range would be 4 to 7 years’ custody.
Aggravating factors
After calculating the starting point for the sentence, the court will proceed to consider relevant previous convictions. Those that have been committed recently will be particularly significant to increasing the seriousness of the sentence.
The court will also consider any other aggravating factors, which will increase the seriousness of the rape sentence. These include, but are not limited to:
- Offence committed whilst on bail or whilst on licence
- Specific targeting of a particularly vulnerable victim
- Whether ejaculation took place, where this was not taken into account at step one
- Blackmail or other threats made, where these were not taken into account at step one
- Location of the offence
- Timing of the offence
- Use of a weapon or other item to frighten or injure
- If, as a result of the offence, the victim was compelled to leave their home (this includes victims of domestic violence)
- Failure to comply with current court orders
- If the defendant exploited contact arrangements with a child to commit an offence
- Presence of others, especially children, at the time of the offence
- Any steps taken to prevent the victim reporting an incident, obtaining assistance and/or from assisting or supporting the prosecution
- Attempts to dispose of or conceal evidence
- If the offence was committed whilst under the influence of alcohol or drugs
The presence of any of these factors would move the sentence for the offence from the starting point up towards the higher end of the sentence range.
What are some of the mitigating factors that might reduce the rape sentence?
The presence of mitigating factors may move the sentence for rape from the starting point sentence (see section above) towards the lower end of the sentence range.
Mitigating factors in sentencing for rape can include:
- Where the defendant has no previous convictions or no relevant/recent convictions
- If the defendant shows remorse, either at the time of the offence, during the criminal investigation, or at trial
- Age and/or lack of maturity where it affects the responsibility of the offender
- Mental disorder or learning disability, particularly where linked to the commission of the offence
- Where the defendant was previously of good character and/or displayed exemplary conduct (this is a difficult factor to argue in rape cases, though, so it is rare that it will reduce a defendant’s sentence)
Once the court has considered the harm, culpability, and aggravating and mitigating factors particular to the defendant’s case, because rape is categorised as a violent sexual offence, it is then obliged to consider the dangerousness of the defendant and whether this would justify the imposition of a life sentence.
A defendant in a rape case is more likely to meet this dangerousness threshold where the rape offence is the second, or subsequent serious offence that they have committed. The guidelines for the assessment of dangerousness are set out at Part 10, Chapter 6 of the Sentencing Code.
The full sentencing guidelines can be found here.
Is it possible to reduce a sentence for rape with a guilty plea?
The court has the power to reduce a defendant’s sentence where they have made a guilty plea. When considering how much to reduce the sentence by, the court will consider:
- At what stage the defendant entered the plea: the earlier the guilty plea was made, the greater the sentence reduction is likely to be; and
- The circumstances in which the guilty plea was given
This is set out in Section 73 of the Sentencing Code. The law does not state how much the court is permitted to reduce the sentence for rape by where there is a guilty plea.
The sentence can also be reduced where the defendant has offered assistance to the prosecution. This could involve, for example, identifying co-defendants to the crime. This is set out at Section 74 of the Sentencing Code.
What are some of the other consequences of the rape offence?
Criminal record
If you are convicted of rape, you will receive a conviction that will become a permanent part of your criminal record. This means that you will have to declare it at various points of your life, including on job applications, visa applications, and on some housing applications.
DBS check
When you apply for a job, if you are required to undergo a Disclosure and Barring Service (DBS) check, your conviction will show up on the check, which means that your potential employer will become aware of your conviction.
Sex Offenders Register
You will also be added to the sex offenders register. The sex offenders register is a list of individuals who have been convicted or cautioned in relation to a sexual offence. It also includes individuals who have committed a sexual offence but who have been found not guilty due to insanity or disability.
If you are added to the Sex Offenders Register, you are required by law to notify the police in your local area within three days of your release from custody of:
- Your name and any other identities that you use
- Your date of birth
- Your home address or premises where you can usually be found, and any change to your address
- Any address where you have stayed for 7 days or longer
- If you have remained for at least 12 hours at a household or other private place where an under 18 year old stays
- Any intended travel 7 days prior to departure
- Your passport, credit card, bank account details, and national insurance number
At least once every 12 months, you must confirm that these details are correct.
If you are convicted of an offence with a sentence of 30 months or more, you will remain on the sex offenders until you are notified of removal. There is no time period specified for this, so it could be that you remain on the Sex Offenders Register permanently.
Those with a sentence of between 6 to 30 months will remain on the Register for 10 years.
If you have been convicted of a sentence of 6 months or less, the time on the register is 7 years.
If you were under 18 years year old at the time when you were convicted, the time that you will spend on the Sex Offenders Register is halved.
Where to get further help
If you have been accused of rape, you should waste no time in obtaining legal representation from an experienced criminal defence solicitor whom you trust. At Stuart Miller Solicitors, our experienced and non-judgmental team of rape lawyers are ready to assist you. We will provide you with thorough and straightforward advice on your case and advise you on the options that are available to you. Contact us for a no-obligation consultation today.