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There are 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.
According to the Sexual Offences Act 2003, rape is committed if the following conditions are met:
The general definition of sexual assault is an act that is a physical, psychological, or emotional violation of another person in the form of a sexual act that is performed without their consent. Note that sexual assault does not have to involve actual contact (although in the case of assault by penetration, it does) so simply forcing someone to watch a sexual act against their will is classified as sexual assault.
In these cases, the lines can seem a bit more blurred, but in the eyes of the law, they are separate offences.
Rape is strictly the penetration of the anus, mouth, or vagina with a penis specifically. In the case of assault by penetration, the object used to penetrate does not have to be a penis. It may be a finger, or another object, so long as it is used for the purpose of penetration with sexual intent.
Statutory rape differs from standard rape convictions in that it is a broad view of rape that only deals with victims that are by law unable to consent due to their age. There are three kinds of statutory rape:
It is crucial to note that even in situations where the sexual act in question is consented to by both parties, the act is still considered statutory rape, given that the child/teenager in question cannot, by definition, consent to such an act.
According to the law, a rape takes place where:
If a victim consents to sexual activity, they must:
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.
Rape is a broad term, and you might be wondering whether the law treats these various types of rape differently. Generally, it does not. Rape is rape, in that sense. However, there are different kinds of rape that occur ‘factually’, so it’s worth understanding what those different terms might mean.
What is oral rape?
Oral rape is when the offender penetrates only the mouth of the victim, with their penis, without their consent.
What is corrective rape?
Corrective rape is a particularly disturbing crime that involves the raping of a women with the intent to “cure” them of their sexual identity through the act of penile penetration. This can be rape with homosexuals, bisexuals, transgenders, and other individuals.
What is endemic rape?
Endemic rape is rape that is rape that is patterned or organized against the individual.
What is anal rape?
Anal rape is the penetration of the anus, with a penis, without the consent of the other individual in question.
What is marital rape?
Marital rape is the raping of an individual that is considered to be your spouse (or ex-spouse) without their consent. It is also known as spousal rape and can be considered to be a form of domestic violence.
What is second degree rape?
This form of rape is when a person uses force to assault another person who is incapable of consent due to their being physically helpless or mentally incapacitated.
One crucial point to observe in all the types of rape out there, is that they all require a lack of consent, either due to the status of the party (not being able to consent by definition) or simply from their lack of choice to join in the act.
On average, a defendant will be sentenced to between 4-19 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 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.
Regardless of the intoxication level of the offender, the average sentence for rape will still be somewhere between 4-19 years’ time, with the possibility of life in prison. However, a person that is voluntarily under the effects of drugs or alcohol may be tried more harshly as this is considered to be an aggravating factor (it increases the seriousness of the offence). So, while the maximum sentence possible does not change, the likelihood that you will receive a harsher punishment is higher.
If the offender is addicted to drugs and/or alcohol, the intoxication may not be seen as voluntary, but that will be determined by a multitude of factors, such as how much the offender sought help for their addiction. It is by no means an ‘easy out.’
Given that the legal definition of rape includes using a penis, no, a woman cannot be charged with rape per se. However, a woman can be convicted of sexual assault, which as defined is the unwanted (non-consensual) sexual touch or act to another individual.
As of March 2022, there were approximately 70,330 rapes recorded, which is the highest amount to date. However, only around 1 in 100 rapes are thought to have actually been recorded by the police in 2021.
Given that the current population of the UK at the time of writing is around 67 million, approximately 0.1% of men are convicted rapists. Keep in mind that if only 1 out of 100 cases of rape are reported, that statistic increases to a staggering 1%.
Research from the end of March 2020, found that around 3.8% of adults aged 16-74 had experienced sexual assault by penetration or rape (also including attempts to do so) since the age of 16. Out of these victims, only 0.5% of those assaulted were male.
Historic cases are quite a bit different than current ones. For starters, these are offences that have taken place under the Sexual Offences Act 1956, or other type of legislation prior to the 2003 Act.
Given that it is a general principle that the law should not be applied retroactively, the basic idea so far is that an offender should be sentenced according to the law at the time the crime was committed. This idea has been further reinforced by Article 7 of the European Convention of Human Rights (ECHR).
Given the wide changes in legislation since the Act in 1956, determining sentences for these kinds of cases is not easy. Here are the common maximum sentences for certain effective dates, according to the Sentencing Council in the UK:
|Offence||Effective Date Range||Maximum Possible Sentence|
|Rape||1 Jan 57 – 30 April 04||Life in prison|
|Buggery (considered rape after 3 November 94) with a human or animal||1 Jan 57 – 20 April 04||Life in prison
|Indecent Assault on a woman||1 Jan 57 – 1 July 60||2 years in prison|
|Indecent Assault on a woman||2 July 60 – 15 Sept 85||2 years or 5 years if the victim is under the age of 13 and age is stated on indictment|
|Indecent assault on a woman||16 Sept 85||10 years in prison|
|Indecent assault upon a man||1 Jan 57 – 30 April 04||10 years in prison|
It is important to note that there are many other types of rape and/or sexual assault that are tried differently given the effective date of the offence. Consult your solicitor for more information on these. Note that the seriousness of the offence (as so determined by the culpability of the offender and the harm caused) is still the main consideration when delineating a sentence.
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.
Factors that increase the court’s perception of the harm caused to the victim by rape include:
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.
The following factors will be taken to increase the court’s perception of the defendant’s culpability:
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’.
According to the Ministry of Justice, the median time between the offence of rape and the completion of the case was around 1,020 days, or over two and half years’ time. This statistic was from the first nine months of 2021.
In addition, the average number of days between the reporting of a rape incidents and the police referring the case to the Crown Prosecutor Service is approximately 218 days, according to a research report from the House of Commons Committee.
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 be 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 13-19 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.
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:
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:
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.
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:
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.
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.
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:
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.
If you are falsely accused of rape or another kind of sexual offence, you will likely feel a deep amount of fear, anxiety, and uncertainty for your future. One of the best things you can do is immediately get legal assistance from professional rape lawyers or criminal lawyers in your area. They will be able to provide substantial advice and help you navigate this difficult situation.
Secondly, you also should take care not to raise suspicion against yourself in any way. This means making sure to not take the matter into your own hands and try and solve things with the complainant yourself; especially if you know them personally. This can quickly lead to undue consequences and may negatively affect your case.
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 explain the options that are available to you. Contact us for a no-obligation consultation today.
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