What do we know about sentencing sexual offences in Scotland?
The law surrounding rape and sexual offences has undergone significant reform in Scotland following the introduction of the Sexual Offences (Scotland) Act 2009. In recent years, much academic and policy work has radically re-considered sexual offences: how definitions offered by the Act operate in practice, the low conviction and high attrition rates associated with these types of offences and the ongoing difficulties associated with the use of sexual history evidence in criminal trials.
But how much do we know about sentencing of sexual offences in Scotland?
Although much attention has been paid to issues of prosecution and conviction, much less academic consideration has been given to sentencing practices of sexual offences in Scotland. Our reports focus on issues pertaining to the sentencing of: (i) cases involving rape and (ii) cases involving sexual assault.
Whilst conviction rates for rape and other sexual offences remain significantly lower than other criminal offences in Scotland, the evidence available on sentencing indicates that where a conviction for rape arises, imprisonment is highly likely. In the very wide spectrum of sexual assault cases not involving rape, custodial and community based sentences are roughly equally likely.
There are also additional far-reaching restrictions which may be placed on a sexual offender through notification requirements (often referred to as the ‘Sex Offenders Register) or through an Order for Lifelong Restriction (OLR). OLRs are unique to Scottish and allow for intensive, potentially lifelong supervision of offenders who are considered particularly high risk.
Our reports present previously unpublished findings on the use of OLRs in Scotland between the period 2006 to 2018 as well as unpublished data relating to penalty types and specific convictions.
But Official Data is Limited
The limitations of the official data available on sentencing must be recognised.
For example, one important limitation is that the official data available struggles to distinguish between single and multi-conviction cases. Since multi-conviction cases are likely to receive higher sentences, the gravity of offences may become obscured and comparison between different cases can be rendered unreliable. McPherson and Tata have previously pointed to similar limitations in the context of driving offences.
In the context of sexual offences specifically, current data does not distinguish between rape and attempted rape or between specific charges of rape (section 1, section 18 or common law).
Although our reports have been able to provide data on numbers of registered sex offenders in Scotland and the use of OLRs, this could not be distinguished further by offence type.
These (and other) limitations can present issues to those governmental bodies responsible for collecting and publishing such data. However, while intricate in nature, they should not be seen as a minor footnote. They mean that the ability to describe and characterise patterns of sentencing for different kinds of cases can be limited and the possibility that sentencing is not always accurately represented in officially published data cannot be discarded.
None of this should be taken as criticism of the individuals working diligently to improve the quality and presentation of official data and indeed similar challenges have been faced by their equivalents in other countries. But it is to recognise that the ability to inform both the public and indeed professional decision-makers (including judicial decision-makers) about the typical patterns of sentencing for specific kinds of cases or scenarios can be influenced by the ways that official data are currently recorded.
Public Attitudes and the Potential to Improve Public Confidence in Sentencing
Our reports discuss international research on public perceptions of sentencing of sexual offences. Little in-depth research has been conducted on public perceptions of sentencing of sexual offences in Scotland. McPherson and Tata have recently completed research on this in association with Scotcen and our report will be published shortly by the Scottish Sentencing Council.
Research studies from comparable countries have tended to find that members of the public believe that there is excessive leniency in sentencing in general, not least in sexual offences, including rape. However, those studies show that people tend to greatly to over-estimate the leniency of actual practices. In such studies people are presented with specific case scenarios and asked to give their preferred sentence as well as what sentence they would typically be passed.
Remarkably, their preferred sentences tend to be much more closely aligned to the actual sentences which are passed in reality. This tends to pleasantly surprise people, not least those who supposed sentencing is far more lenient than it actually is.
The bigger implication is that more could be done to engage and inform the general public about the typical reality of sentencing practices in sexual offence (and other) cases. At a policy level, this finding from other countries implies grounds for optimism: that public confidence in sentencing has the potential to be enhanced through the careful provision of good quality information about normal sentencing practices.
However, the ability to compare public perceptions and preferences directly with the reality of sentencing practices in different case-scenarios is thwarted by the lack of easy availability of high quality sentencing information.
Harm and Culpability
Our reports also consider issues pertaining to assessments of culpability. The aggravating and mitigating factors considered by the courts in the context of sexual offending are comparable to other types of cases but it must be emphasised that the psychological harm to a victim of a sexual offence is likely to be greater than that experienced in other offences. In addition to the violation of sexual autonomy that accompanies rape in particular, there are further risks such as sexually transmitted disease and pregnancy, which are unique to this type of offending.
Lastly, our reports consider sentencing practices in England and Wales – where sentencing severity for sexual offences has increased over the last ten years- and Australia and Canada- where the framework of sexual offences differs significantly. Instead, a wide range of behaviours is covered by the umbrella offence of ‘sexual assault’. In such jurisdictions, where less specificity is offered, the communicative role of sentencing becomes especially significant.
The literature reviews, were carried out by Dr Rachel McPherson, Mr Nicholas Burgess, Dr Jay Gormley and Professor Cyrus Tata of the School of Law at the University of Glasgow and the Centre for Law, Crime and Justice at the University of Strathclyde.