Ver 4 - Rape Draft Sentencing Panel – consultation paper

Chippendale women audience. US parole – rape alchol violetes - doe it in the UK ? look at very end

Introduction

The literal definition of rape is, to take by force, and in the sexual context to not only take by force but to penetrate the vagina, ie the female sexual organ by the male sexual organ. Rape is inextricably bound up with the assumption that the victim is always a woman.

Such a definition leads to a cohesive view of what rape is, what is involved, the nature of the offence and therefore, what the sentence for the offence should obviously be.

But rape is not a homogenous, uni-dimensional offence, which easily lends itself to a simple remedy. If that is the case, and we believe it is, then simplistic answers to a mutli-facted and multi-layered problem would not only be wrong but indefensible. It would then become very unjust for rape sentencing to avail itself to a simple remedy ratcheted up by degrees of ‘aggravation’.

Over the recent years, stretching back perhaps 20, an increasing degree of confusion has entered the language of rape and thus into the debate itself. The issue of rape is now cluttered with ill-defined definitions and is so highly charged, in the political sense, that a re- assessment of what is intended is more than timely. "Setting the Boundaries" is singularly unhelpful in this regard. It is choked with "new ideas" that clouds the real issues with trivia

In devising a set of guidelines for punishing rape and in determining how many years a man found guilty should serve, care and attention must be shown towards what the overall intent and objectives the guidelines are there to enforce.

i). Is it for the advantage, protection or benefit of the victim ?

ii). Or is it as a deterrent for would-be offenders and a punishment for the offender ?

If the former, what protection does prison offer the victim. Is it simply a matter of just desserts ? Is the victim expected to benefit or prosper, and if so by how much ? At present we offer monetary compensation to victims which has increased year on years and now stands at 205m (2000). Other countries have found it too expensive to operate and have decided to abandon similar schemes. We must discover what we, as a society, really want. Are we to appease public opinion or reach balanced judgements ? In the case of male victims, where rapes and indecent assaults reach parity with female rapes, is it punishment, protection or retribution that we seek ? (see chapter 4/5).

If we are looking at rape sentences as a deterrent then we must consider our present system and then enquire what is happening elsewhere in the world, before we judge whether to adopt their regime or alter ours. We might find a regime that is more effective.

If we are looking at rape sentences as a deterrent then we must also consider what protection can be afforded someone wrongly accused and then wrongly convicted. Shame and stigma is a two edged sword

and cuts both ways the accuser and the accused. Anonymity is presently denied the accused (see footnote

6). This question is quite separate from findings whether the average jail sentence is an effective deterrent or not.

Clearly the level of punishment must be consistent and sufficient to be a deterrent. It must also be capable of sending a clear message to the public of the gravity of the offence. What it must not represent is a sufficient punishment in the subjective opinion of the person who claims to be a victim.

Rates for high, medium and low violent crime victimisation, by country, were published in "Digest - Information on Criminal Justice System in England and Wales 1995" (p 9). Rape and indecent assault fall within the broad umbrella category of 'violent crimes'. Interestingly, the highest rates then (1994), were in the primarily English speaking countries, ie, Australia, New Zealand, Canada, USA etc. All share a common legal heritage and all are in advance of the UK with regard attempts to overhaul and modernise sentencing for sexual crimes.

The only exception listed was England & Wales. The Home Office’s 'risk assessment' for England and Wales shows that we are in the mediun risk category regarding all crimes when compared internationally but in the low group, together with Japan internationally, where sexual offences are concerned, with Japan lowest of all.

Following incremental changes in judicial procedures and legislative changes implemented since 1995 it would be interesting to see where England would now be placed in the international league table.

Ten years ago (1991) Canada undertook similar fundamental reforms that the UK now envisages for its sexual offence and domestic violence laws. It overhauled its court practices and procedures. The developments were heavily influenced by a 1989 survey conducted in Alberta. Only 10 years later (in 1999 and too late), did it emerge that half the Alberta survey had never been published. What the suppressed half showed was that men were victims of domestic violence in greater quantities than women. The reforms cost the Canadians billion of dollars and years of unhappiness that cannot be measured (Appendix A). In the UK today, we are about to similarly change our sexual offence and our domestic violence laws and our statistics are also suspect.

The risk of rape, when judged by numbers incarcerated was highest in the USA and lowest in Japan. Japan together with England and Wales was in the low risk victimisation category. The number of reported rapes in Japan totalled 1,500 in 1995 and it is noteworthy that the numbers have been steadily declined since 1980 (see Table A).

Table A. Rape - Japan

1/. Indecency 2/. Reported 3/. Number 4/. Cleared-up 5/.Prison

and rape rapes Arrested Crimes population

1975 – 683 - - - - - - 1,135

1980 – 592 2,610 2,667 2,322 683

1985 – 535 1,802 1,809 1,624 592

1990 – 550 1,548 1,289 1,274 535

1995 – 548 1,500 1,160 1,410 550

1996 - - 1,483 1,117 1,317 548

1997 - 636 1,657 1,448 1,472 636

1998 - - - 1,873 1,512 1,652 - -

Source: Criminal Investigation Bureau, National Police Agency.

Critics might, with some justification, suggest that Japan is a very traditional society. In some ways that true. They perhaps might also suggest that rapes in Japan could be underreported. That could also be true. But in so many other telling ways Japan is the most modern of industrialised nations. Japan has far greater density of population per square mile; is far more urbanised; and has a law and constitution bequeathed to it by the US administration in the immediate post war years. Yet despite this, the trend in Japan is steady if not downwards. To lend weight to this argument, revisiting our own rape crime figures is instructive (see Table B).

Table B. Offenders found Guilty at all courts for indictable sexual offences (Rape of a female) (actual numbers, England & Wales).

Year

1989

1990

1991

1992

1993

1994

1995

1996

1997

1998

1999

Rape convictions

613

561

559

529

482

460

578

573

599

656

631

Source : Table 5.12 Criminal Statistics England & Wales 1999

It could be argued that we have mis-guidedly trailed behind the American model in devising ever-broader definitions of rape while at the same time always increasing custodial sentences. A review of jailing statistics show that American men are 3,000 times more likely to be jailed for rape or a sexual offence than a Japanese man, per head of population. This should cause us to pause for a moment if, as we are told, rape is a function of male oppression, dominance and power.

We have perhaps been manipulated by lobby groups for some years. Government and the judiciary has slowly been manoeuvred into a position of vulnerability, if not dependency. We now need to re-assess the resultant structure and redress any imbalance with considered judgements.

As a society, we have adopted as our remit that women should feel safe on the streets. By extension this should now apply to men. They must also be made to feel safe. Men are victimised to a very much higher degree in terms of homicides and assaults. They suffer too from wild and false allegations of rape. This applies to alleged stranger rapes but more so in cases of acquaintance or intimate rapes.

If a former Gov't minister, Mr. Neil Hamilton, and several celebrities in the entertainment world, e.g. Andrew Neil (former Sunday Times Editor), rock star, and friend of Tony Blair, Mick Hucknall, can fall foul to career wrecking claims, then we should be concerned for the ordinary man on the street.

In our estimation the truest test of a fair and equitable approach to rape sentencing would be one which make men feel every bit as safe as women. Rape accusations are acknowledged by judicial leaders as very easy to make but very difficult to defend. Some false allegations are inspired by malice or postnatal depression. Others may be triggered by mental instability or personality disorders. And yet other may have ulterior motives.

One such ‘alleged victim’, in Northern Ireland saw a RUC officer jailed while his accuser received over £20,000 in compensation from a variety of state sources. But whatever its cause the results are disastrous for the falsely accused.

Some years ago, after hearing the false testimony of a woman who claimed she had been raped, the judge was moved to recommend that a national Register be set for such false accusers. Other judges have since commented favourably on the suggestion.

It therefore behoves that we give ample consideration to that dimension.

For our part ManKind has devised measures that would, if adopted, substantially reduce time wasted by courts and precious police manpower resources when investigating false rape allegations. As a by-product these measures would actually increase accuracy and the standard of justice would rise. These are more fully dealt with in our Minority Report which we believe would go a considerable way to alleviating the concern felt by many men in regards being falsely accused of rape.

Speaking to prisoners, it is clear that regardless of their actual guilt or innocence, the overwhelming impression they felt was one of a juggernaut being unleashed immediately the accusation was made.

They were simply overwhelmed by a steam roller process that brooks no delay and seeks only confirmation of their guilt. The irrepressible desire is to plead guilty to end the assault on one's personal dignity. To have a prospect of leaving jail in 3 years rather than 7 or 10, suddenly becomes a very attractive proposition. This is particularly acute in real cases of innocence where a guilty plea may prefer to be entered. This, we suggest, is no basis upon which to run an ethical justice system.

The alternative, far too frequent for the innocent, is suicide. One Morpeth man, aged 63, committed suicide after waiting 3 months. Occasionally, police will go too far in order to secure a conviction. By deliberating with holding vital videotape footage, evidence that could have cleared the man, in a rape trial police on Nottingham tried not only to entrap the accused man a few days later in a phone calls, but pervert the course of justice. A feature which earned them a reprimand by the trial judge.

Another man, in Ireland, is now beginning a 7 year sentence for raping and making pregnant a then 13 year old girl. The fact that he was sterile and had no children either with his first wife or his second, counted for naught. He had to be made an example of, despite a DNA correlation of only 350 to one. The judge noted his protestations of innocence, but as HOS 196 and 170 so vividly convey, to protest innocence is only to stoke up the fires for a longer sentence. Hence the attraction of pleading guilty even when innocent. It also benefits the statistics for the Home Offices and reinforces their eclectic view of the numbers raped and meets their political ‘need’ for even more convictions.

Despite being made aware of these factors the Home Office is still reluctant to change or accept the implications. There has been some slight movement with regard anonymity for men accused but this is only after pressure via feature articles and programmes such as BBC’s ‘Kilroy’.

However, David Calvert-Smith, the DPP has backed anonymity for defendants in sex cases. He believes the law should be changed to grant anonymity to people accused of rape and child abuse. Mr Calvert-Smith, head of the Crown Prosecution Service, said: "I would certainly not oppose such a proposal. It would not make the life of a prosecutor any more difficult, and a case could be made [for granting anonymity until conviction] for those accused of rape or other sexual offences, like child abuse, which is just as damaging to a person.". The Director of Public Prosecutions comments however fall short of a direct call for such a move.

 

 

Chapter 1

Basic Premise