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Sentencing Rape

A Comparative Analysis

By: Graeme Brown
Media of Sentencing Rape
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Published: 14-05-2020
Format: Hardback
Edition: 1st
Extent: 328
ISBN: 9781509917570
Imprint: Hart Publishing
Dimensions: 234 x 156 mm
RRP: £75.00
Online price : £67.50
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About Sentencing Rape

This book presents an in-depth comparative study of sentencing practice for rape in six common law jurisdictions: England and Wales, Scotland, Ireland, Canada, New Zealand, and South Africa. It provides a thorough review of the medical literature on the physical and psychological effects of rape, the legal and philosophical literature on the seriousness of the offence, and the victim's role in sentencing. Given the increasingly common practice of perpetrators using mobile and online technologies to film or photograph the commission of sexual offences, the book examines recent socio-legal research on technology-facilitated sexual violence and considers the implications for sentencing.

By building on recent scholarship on judicial decision making in sentencing and case law – comprising over 250 decisions of the relevant appellate courts – the book explores and critically analyses judicial approaches to rape sentencing. The analysis is undertaken with a view to suggesting possible reforms to rape sentencing in 'non-guideline' jurisdictions. In so doing, this book seeks to establish general principles for sentencing rape, assisting in the imposition of proportionate sentences.

This book will be of interest to judges and practising lawyers; to those researching criminal law, criminal justice, criminology, and gender studies; and to policy makers, including sentencing councils and commissions, in common law jurisdictions worldwide.

Table Of Contents

1. Sentencing Rape: An Introduction to the Study
The Value of a Comparative Analysis of Rape Sentencing
The Analysis of Rape Sentencing
A Note on Terminology: 'Victims', 'Survivors', 'Complainants' and 'Complainers'
The Scope of this Book
An Outline of the Chapters
2. The Seriousness of Rape and the Victim's Role in Sentencing
The Physical Effects of Rape
Physical Injury and Multiple Perpetrator Rape
The Psychological Effects of Rape
The Physical and Psychological Effects of Male-on-Male Rape
A 'Unique Violation' – The Wrongness of Rape
The Court's 'Duty to Understand' in Sentencing Rape
Hearing the Victim: The Use of Victim Statements in Sentencing Rape
3. Technology-Facilitated Sexual Violence and Image-Based Sexual Abuse: The Filming of Rape and Sexual Assault
Technology-Facilitated Sexual Violence and Image-Based Sexual Abuse
Why do Offenders Film Rape and Sexual Assault?
The Production of 'Pornography'
Further Humiliation of the Victim
The Compulsion to Document
The Convergence of the Three Trends and Motivations
The Filming of Multiple Perpetrator Rape
The Effect on the Victim
The Effect on the Victim as a Factor in Sentencing: Recent Appellate Decisions
Empirical Studies of Technology-Facilitated Sexual Violence
The Response of the Courts and the Legislatures
England and Wales
Other Jurisdictions
4. From Guidance to Guidelines: Rape Sentencing in England and Wales
From Billam to the Definitive Guideline: The Development of Rape Sentencing Guidelines in England and Wales
The First Phase – The Roberts and Billam Guidelines
The Second Phase – The Millberry Guidelines
The Third Phase – The Sentencing Guideline Council's Definitive Guideline on the Sexual Offences Act 2003
The Fourth Phase – The Sentencing Council's Definitive Guideline ..........83
Rape Sentencing and Plea-based Sentence Reductions
5. A 'Radically Different' Approach: Rape Sentencing in Scotland
Pragmatism, Flexibility and Individualisation: How Scottish Judges Sentence
The Traditional Approach to Sentencing
The Move Towards Sentencing Guidelines in Scotland
The Use of English Sentencing Guidelines as a 'Cross-Check'
The Scottish Sentencing Council
Early Appellate Guidance on Rape Sentencing
Limited Appellate Guidance and the Crown's Request for Sentencing Guidelines: The Decision in Shearer
The Three-and-a-half-year 'Benchmark': The Courts' Use of Shearer as an Anchoring Point
The Shearer Benchmark – A Comparison with Canadian Sentencing Practice
Sexual Assault under the Canadian Criminal Code
The Three-Year Starting Point in Sandercock
The Sandercock Starting Point and the Intoxicated Victim
Appellate Views on Sentencing Relationship and Acquaintance Rape: The Decisions in Ramage and Petrie
Towards Improved Reasoning in Rape Sentencing: The Decision in Cooperwhite
The Need for Consistency and Predictability in Sentencing Rape: The Majority View in Cooperwhite
Judicial Sentencing Discretion 'Soundly Exercised'? Lord Eassie's Partial Dissent in Cooperwhite
Reflecting 'Modern Thinking' on Relationship Rape: The Decision in SSK
Further Developments in Rape Sentencing: The Decisions in AB and Collins
Considerations in Sentencing Oral Rape – The Crown Appeal in AB
Sentencing Sexual Offences Committed in Abuse of a Position of Trust – The Crown Appeal in Collins
The Sentencing Range for Rape in Scotland
'Too Generous and Too Readily Given'? Guilty Plea Discounts in Sentencing Rape
The Development of Guilty Plea Discounting in Scotland
Limiting the Discount in Rape Sentencing – The Decision in Murray
6. Proportionality and Individualised Justice: Rape Sentencing in the Republic of Ireland
Sentencing in the Republic of Ireland
A 'Quiet Revolution' – The Court of Criminal Appeal's Guideline Judgments in Ryan and Fitzgibbon
The Guideline Judgments in Casey and Casey and Mahon
The Judicial Council Bill and the Sentencing Guidelines and Information Committee
The Principle of Proportionality
Sentencing Methodology – The Two-Tiered Approach
Sentencing Rape
The Decision in Tiernan
The Application of the Tiernan Principles
A Feminist Critique and Re-writing of Tiernan
'Lenient', 'Ordinary', 'Severe' and 'Condign' Punishments – The Decision in Drought
'Ripples on a Lake' – Further Appellate Recognition of the Harm Caused by Rape
Marital and Relationship Rape
Recent Reviews of Sentencing Practice
Rape Sentencing and the Guilty Plea Discount
7. 'Pragmatism and Individualisation' versus 'The Mandatory Minimums Algorithm': Rape Sentencing in New Zealand and South Africa
Rape Sentencing in New Zealand
The Crime of Rape in New Zealand
Sentencing Practice, Guidance and Methodology in New Zealand
The Sentencing Act 2002 and the New Zealand Sentencing Council
Sentencing Guidelines for Rape: The Decision in R v AM
An Assessment of the AM Guidelines
Rape Sentencing in South Africa
The Crime of Rape in South Africa
A 'Dual Sentencing System': An Overview of South African Sentencing Practice
Judicial Discretion and 'The Triad of Zinn': The Traditional Approach to Sentencing in South Africa
The Criminal Law Amendment Act 105 of 1997: Mandatory and Minimum Sentences for Rape
'Sentencing Cliffs', False Perceptions of Leniency and the 'Worst Category' Test – Systemic Problems with Prescribed Sentences for Rape
Guideline Judgments versus Mandatory and Minimum Sentences
8. Principled Discretion in Rape Sentencing
Current Issues and the Need to Structure Discretion in Rape Sentencing
Mandatory and Minimum Sentences
Sentencing Council Guidelines
Guideline Judgments
'Principled Discretion' in Sentencing Rape
Towards Sentencing Guidelines for Rape
Lessons from Non-Guideline Jurisdictions
Understanding the Offence
The Nature of the Guidelines
The Format of the Guidelines
Rape Sentencing and the Guilty Plea Discount
Concluding Observations

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