Sentencing in child sexual assault cases: factors influencing judicial decision-making

Abstract

To date, there has been limited examination of variables that influence sentencing in child sexual abuse cases. This study examines the extent to which offence characteristics (such as the number of offences, number and age of victims), the behaviour and perceived credibility of the victim impact upon both sentence length and the setting of earliest parole dates. Analyses conducted using data from 66 adjudicated cases of child sexual assault from the County Court of Victoria, Australia revealed that longer sentences were handed down to offenders who had perpetrated multiple offences, or who had committed offences against younger children. Lower levels of victim credibility were associated with shorter sentences and earlier parole dates for offenders, which were also associated with the presence of more harmful behavioural indicators of abuse. The findings are discussed regarding the importance of presenting evidence about the behaviour of victims following sexual abuse in criminal trials.     

“To This Day She Continues to Struggle with the Terror Imposed upon Her”: Rape Narratives in Victim Impact Statements

This study locates the victim impact statements of raped women in the sociolegal context of significant sentencing law reforms introduced in Canada to address an ascendant victim’s rights movement. We examine 38 reported sentencing decisions in sexual assault cases in Ontario, Canada (1999–2010). Our objectives are to discern (a) whether the archetype of the ideal victim continues to influence juridical discourse after conviction and (b) what narratives of harm intersect with sentencing objectives and aggravating factors. Our findings suggest women express profound fear of re-victimization and traumatic effects of sexual violence regardless of the relational context of their rape experience. Most surprisingly, our data show sentencing judges view the sexual assault of an intoxicated rape victim as an aggravating factor. Future consideration for victim impact statements in sexual assault cases is discussed.     

Sexual Offences in Vanuatu under the Light of Custom and Law: “An Avenue for Restorative Justice”

This paper will focus on the Republic of Vanuatu’s society and customs relevant to this topic. I will consider the laws made by the legislature to deal with sexual offences in Vanuatu and how they are being implemented or enforced. I will also discuss the different provisions under the law whereby accused persons have an option to actually compensate the victim of the offence and how it is being used in Vanuatu in relation to sexual offences. This paper will also look at how Vanuatu’s culture influences the prosecution or the sentencing of sexual offences or dealing with such crimes in the first place. This will reveal whether Vanuatu’s customary approaches to sexual offences actually support the state’s laws to punish such offenders and if a more fair and just process is needed where the voices of the offender as well as the victim are heard. Custom usually does not allow the victim to speak, and the victim’s parents and the elders of the community decide how the offender should be dealt with. Neither the formal court process nor the customary reconciliation process seem to take into account the wishes and interests of the victim and the offender. The flaws within the legal system and customary laws in addressing victims’ and offenders’ issues will be examined and an alternative process of restorative justice will be discussed.     

BC Court of Appeal refuses to reduce sentence for HIV-positive prisoner

On 9 May 2002, the BC Court of Appeal released its decision in a prisoner's sentencing appeal where the Crown and the defence agreed that the original sentence was illegal, and differed in their positions as to the appropriate sentence by only one day. That one day meant the difference between serving the sentence in a provincial jail as opposed to a federal penitentiary.     

Sentencing Contempt of Court in International Criminal Justice: An Unforeseen Problem Concerning Sentencing and Penalties

International criminal tribunals, like any criminal court, havebeen faced with offences against the administration of justice,such as contempt of court. The power of the UN ad hoc Tribunalsto punish these offences has raised problematic issues mainlyconcerning respect for the principle of legality (includingfrequent amendments to contempt-provisions, and the substantialincrease of the sentencing frame for contempt within only afew years). This article seeks to clarify some aspects concerningapplicable penalties and sentencing for contempt of court throughthe examination of the case law of the ad hoc Tribunals andthe Special Court for Sierra Leone, discussing its implicationsfor the principle of legality. It is argued that the processfollowed in sentencing contempt is in many aspects not dissimilarto the traditional judicial practice of the Tribunals concerningpurposes of punishment, aggravating and mitigating circumstancesand guilty pleas.     

Non-custodial Dispositions and the Politics of Sentencing

In 2012, the Government of Victoria, Australia, introduced a new form of non-custodial disposition known as the “community correction order” (“CCO”). In 2014, the Victorian Court of Appeal was asked to provide guidance to sentencing courts so that CCOs could fulfil their potential as an alternative to imprisonment. The Court’s guideline judgment concluded that the advent of the CCO had the potential to transform sentencing in Victoria but that this would depend upon the community being properly informed about the capacity of a CCO to operate punitively, as well as to promote rehabilitation. This did not occur, however, and there was strident criticism of the judgment as authorising inadequate punishment of serious offences. Although sentencing courts have utilised the CCO appropriately in the light of the judgment, the Government recently legislated to restrict its availability.     

Case report: Court of Appeal clarifies the law on downloading pornography from the Web

In the recent years the law courts had to deal with a considerable number of cases involving child pornography received or downloaded through the Internet.¹ Moreover, there has been a considerable number of appeals involving not only sentencing issues but also the interpretation provided to the making offences under section 1(1) of the Protection of Children Act 1978 (the 1978 Act) since the decision of the Court of Appeal in R v Bowden.² The Court of Appeal has now had an opportunity to explain the law. Yaman Akdeniz reports.     

Sentencing and State‐Level Racial and Ethnic Contexts

Sentencing studies have incorporated social context in studying sentencing decisions, but to date the bulk of prior work has focused almost exclusively on county context. An unresolved question is whether there also may be state‐level effects on sentencing. Drawing from the minority threat perspective, we examine (1) whether state‐level racial and ethnic contexts affect sentencing, (2) whether this effect amplifies the effect of county‐level racial and ethnic contexts on sentencing, and (3) whether the interaction of county‐level and state‐level contextual effects is greater for minorities than for whites. Analysis of State Court Processing Statistics and other data indicates that state‐level racial and ethnic contexts are associated with sentencing outcomes and that this effect may differ by outcome (e.g., incarceration versus sentence length) and by type of context (e.g., racial or ethnic). The study's findings and their implications are discussed.     

Crossover and stability of victim type in child molesters

Purpose. This study examined the degree to which child sex offenders demonstrated crossover in victim choice, as defined by age, gender, and relationship to the offender. It also aimed to explore the direction of the shift in victim type with repeated offending within each of the three domains and to identify variables predictive of crossover behaviour. Method. The sample comprised 128 adult male child sexual offenders. All had offended against multiple victims and were attending a community‐based assessment and treatment service for sexual offenders at the time of data collection. Variables were gathered, coded, and de‐identified from a manual search through clinical casenotes, from client assessment reports as well as from supplementary information consisting of sentencing remarks or other professional reports. Results. More than half of the sample (63.3%, N = 81) demonstrated crossover in victim type across at least one domain. Crossover was 48.0% (N = 59) in the age domain, 22.0% (N = 28) in the gender domain, and 25.8% (N = 33) in the relationship to victim domain. Crossover offending was associated with number of victims but unrelated to frequency of offending or to recidivism risk as assessed by a standard risk assessment instrument. Transitional matrices showed general stability in victim type across offences within the gender and relationship domains, but lower stability within the age domain. Conclusions. Crossover offending behaviour was found to be frequent in the age domain, but the high frequency of crossover in this domain may be artifactual. Crossover offending was less frequent in the gender and relationship domains, but should be taken into account in risk assessment. Victim type shows stability across multiple offences in the gender and relationship to victim domains. Analysis of victim type across multiple offences should be replicated under conditions where disclosure of offending is maximized.     

From Disparity in Sentencing Towards Sentencing Equality: The German Experience

This article addresses movements in Germany towards greater uniformity in sentencing since the entry into force of the first federal criminal code in 1871, with a particular focus on developments since the second half of the twentieth century. The author reviews the empirical evidence for sentence disparity; addresses the limitations of the constitutional principle of equality as a means for overcoming sentencing disparity; identifies the causes of sentence disparity and tracks practical efforts made to overcome that disparity, specifically through the introduction of prosecutorial guidelines and judicial manuals for certain frequent types of offending. He also explains and critiques different theoretical models for increasing sentencing equality, and reviews the advantages and potential uses of sentencing information systems such as a judgment database created in Japan. The author then turns to the contribution made by the appellate courts to greater uniformity in sentencing and expresses the hope that recent trends towards intensified guidance for trial courts in appeals concerning tax offences will be extended to other types of offences as well.     

Proportionality in Sentencing and the Restorative Justice Paradigm: ‘Just Deserts’ for Victims and Defendants Alike?

The doctrine of proportionality seeks to limit arbitrary and capricious punishment in order to ensure that offenders are punished according to their ‘just desert’. In Australian sentencing law, proportionality goes some way toward achieving this ‘balanced’ approach by requiring a court to consider various and often competing interests in formulating a sentence commensurate with offence seriousness and offender culpability. Modification of sentencing law by the introduction of victim impact statements or the requirement that sentencing courts take explicit account of the harm done to the victim and community has generated debate, however, as to the extent to which offenders may be now subject to unjustified, harsher punishments. This article proposes that in order to overcome the controversy of the modification of offender and victim rights in sentencing, sentencing courts adhere to a doctrine of proportionality that is explicitly sensitive to the needs of victims and offenders in a model of restorative justice that focuses on the consequences of crime as against the individual, rather than the state. The extent to which proportionality, as the current constitutive principle of Australian sentencing law, may be modified to better encourage a dialogue between victim and offender is discussed.     

Structuring Judicial Discretion in China: Exploring the 2014 Sentencing Guidelines

In recent years, a range of western jurisdictions has introduced reforms designed to restrict and guide judicial discretion at sentencing. The reforms enacted include mandatory sentencing laws and guiding statutes prescribing sentencing purposes and principles as well as important aggravating and mitigating factors. However, formal guidelines are the most promising and well-studied innovation. We may now add China to the growing list of countries that have recognized the utility of guidelines. Over the past decade, China has slowly developed sentencing guidelines for its courts. The new guidelines contain both general directions with respect to the determination of sentence as well as specific numerical guidelines for common offences. The guidelines do not follow the approach taken by the US schemes, many of which employ a two-dimensional sentencing grid. Instead, China has adopted a strategy consisting of “Starting Point” sentences which are then adjusted by the court to reflect relevant mitigating and aggravating factors. This approach is much closer to the guidelines developed in England and Wales and those proposed but not yet implemented in New Zealand and Israel. In this article, we explore the new Chinese guidelines and provide a limited comparative analysis with guidelines in other jurisdictions. England and Wales is selected as the principal comparator since it has developed and implemented a comprehensive system consisting of both offence-specified guidelines as well as generic guidelines.     

UK court denies appeal by woman who stabbed police officer with used needle

On 2 September 2003, the England and Wales Court of Appeal (Criminal Division) denied the appeal against sentence by a woman living with hepatitis C who stabbed a police officer repeatedly with a used syringe while resisting arrest. The court confirmed the nine-year sentence.     

Deserved Delayed Release? The Communicative Theory of Punishment and Indeterminate Prison Sentences

Indeterminate sentencing is a sentencing practice where offenders are sentenced to a range of potential imprisonment terms and where the actual release date is determined later, typically by a parole board. Although indeterminate sentencing is often considered morally problematic from a retributivist perspective, Michael O’Hear has provided an interesting attempt to reconcile indeterminate sentencing with the communicative version of retributivism developed by Antony Duff. O’Hear’s core argument is that delayed release, within the parameters of the indeterminate sentence, can be seen as an appropriate retributivist response to the violations of prison rules. This article highlights several problems in O’Hear’s proposal and argues that the communicative theory is not easily reconciled with his proposed model for indeterminate sentencing. In conclusion, it is argued that proponents of the communicative version of retributivism should resist indeterminate prison sentences.     

The Supreme Court on Compensation for Miscarriages of Justice: Is it better that ten innocents are denied compensation than one guilty person receives it?

The Supreme Court determined that a ‘fresh approach’ was needed in an attempt to bring some clarity to the issue of the eligibility for compensation of those who have had their convictions quashed by the Court of Appeal. The definition that the majority agreed upon was that ‘a new fact will show that a miscarriage of justice has occurred when it so undermines the evidence against the defendant that no conviction could possibly be based upon it’. This article argues that the judgment suffers from a failure to consider the purpose of the legislation; that it is unclear whether the test is normative or historical and that this presents a particular problem in cases relating to the Northern Ireland conflict. The Court focuses on the guilt of the appellant and excludes from its consideration any notion of culpability by the state, which is a cause for concern.     

Court of Appeal considers burden of proof in breach of confidence cases

The Court of Appeal considered the burden of proof where a copyof a product was allegedly made in breach of confidence andfound that, because the trial judge had not misdirected himself,it was not for the Court of Appeal to look at whether therehad been copying.     

Enhancing Consistency in Sentencing: Exploring the Effects of Guidelines in England and Wales

Objectives

The development and application of methods to assess consistency in sentencing before and after the 2011 England and Wales assault guideline came into force.

Methods

We use the Crown Court Sentencing Survey to compare the goodness of fit of two regression analyses of sentence length on a set of legal factors before and after the assault guideline came into force. We then monitor the dispersion of residuals from these regressions models across time. Finally, we compare the variance in sentence length of equivalent types of offences using exact matching.

Results

We find that legal factors can explain a greater portion of variability in sentencing after the guideline was implemented. Furthermore, we detect that the unexplained variability in sentencing decreases steadily during 2011, while results from exact matching point to a statistically significant average reduction in the variance of sentence length amongst same types of offences.

Conclusions

We demonstrate the relevance of two new methods that can be used to produce more robust assessments regarding the evolution of consistency in sentencing, even in situations when only observational non-hierarchical data is available. The application of these methods showed an improvement in consistency during 2011 in England and Wales, although this positive effect cannot be conclusively ascribed to the implementation of the new assault guideline.     

Sentencing Female Misdemeanants: An Examination of the Direct and Indirect Effects of Race/Ethnicity

Little is known about the predictors of sentencing for the typical female offender—one who commits a misdemeanor or lesser offense. Moreover, although ample discussions of racial/ethnic disparity in sentencing may be found in the extant literature, most researchers have focused on what happens to males who commit felonies. Thus, to help fill a void I examine the likelihood of receiving a jail sentence among a sample of cases for female misdemeanants. All were convicted in New York City's Criminal Court. I account for direct and indirect effects by estimating a causal model that predicts the sentencing outcome. Race/ethnicity did not directly affect sentencing. Indirect effects, however, were found. Black and Hispanic females were more likely to receive jail sentences than their White counterparts due to differences in socio‐economic status, community ties, prior record, earlier case processing, and charge severity.     

Finding the Balance: Intoxication and Consent

Sexual offences in England and Wales have had a dramatic reimagining in the last 15 years, with the Sexual Offences Act 2003 establishing not only the boundaries of the most heinous of offences such as rape, but also defining one of the most important elements; consent. This article seeks to explore the problems that surround establishing if legally valid consent has been given, with particular regard for cases where voluntary intoxication takes centre stage. The problem that often arises is the question on whether or not an intoxicated victim had the capacity to consent, or establishing if she did consent when memory of the event is hazy, possibly from both parties. Using comparative analysis with other jurisdictions and their take on the offence of rape, the author seeks to discover if the current rules are sufficient to fit within twenty-first century western culture. The victim will be referred to as ‘she’, although the law here and all situations discussed are equally applicable to male rape.

     

Caution ahead: teachers,vetting and the law

At the beginning of 2006 the media reported instances where people who had been convicted of sexual offences against children were permitted to work in schools. A list of unsuitable people (known as ‘List 99’) has existed for over 80 years and yet the system appears to have broken down. In this article I seek to examine some of the issues involved in the operation of List 99, including the suggestion that those who are cautioned for committing offences against children should equally be unable to work with children. A second article will then critically analyse the changes proposed by the government to the operation of List 99 and the vetting of those who wish to work with children.