3. Memorandum submitted by the Fawcett
Society
THE FAWCETT
SOCIETY
The Fawcett Society is the UK's leading gender
equality organisation. Since 2001, we have been contracted by
the Home Office to provide gender expertise on criminal justice
policymaking. We also run the Commission on Women and the Criminal
Justice System, a unique inquiry which brings together experts
from all parts of the system to examine the way women are treated
as victims, as defendants and offenders, and as practitioners.
GENDER EQUALITY
DUTY
The Equality Act 2006 introduces a new duty
on public bodies to have due regard to the need to eliminate unlawful
sex discrimination and to promote equality of opportunity between
women and men. All public bodies, including the Sentencing Advisory
Panel and the Sentencing Guidelines Council, will be subject to
the duty from April 2007.
It is the Equal Opportunity Commission's recommendation
that both the Council and the Panel are listed for the specific
duties, in which case they would be legally obliged to under go
the specific steps. However, even if not listed, in order to meet
their obligations under the general duty, it is best practice
that they assess the impact of the policies and guidelines that
are developed to ensure that they do not have a disproportionately
negative impact on women or men. This will be especially important
for guidelines on offences that affect or are committed by larger
numbers of one gender. It would be good practice, prior to the
duty coming into force in April 2007, for the Council to assess
the impact of the guidelines on victims of sexual assault through
consultation with a wide range of relevant stakeholders, including
Sexual Assault Referral Centres, victim support groups and counselling
organisations.
Consultation with external organisations is
a key part of the gender equality duty. A considerable amount
of work has been carried out on these guidelines, both by the
Sentencing Advisory Panel and the Sentencing Guidelines Council,
and they are very detailed and complex. Many organisations who
have expertise on these issues, such as small under-funded sexual
violence services, would find the Panel's advice and the draft
guidelines inaccessible and would struggle to respond. We suggest,
therefore, that a summary of key principles should be provided
for complex guidelines such as these.
FACTS ABOUT
SEXUAL OFFENCES
— Around 47,000 women are victims of
rape/attempted rape and there are around 190,000 incidents of
serious sexual assault in a year. [1]
— In the vast majority of rapes the
victim knows the perpetrator. The most common group of perpetrators
are husbands and partners. [2]
— Victims of rape are far more likely
to suffer from post-traumatic stress disorder than victims of
other crimes.
— The conviction rate for rape has
been steadily declining and in 2004 just 5.29% of reported rapes
resulted in conviction. [3]
— There are significant variations
in the treatment of rape across the country. The conviction rate
in Gloucestershire is less than 1% of reported cases. [4]
SEXUAL OFFENCES
DRAFT GUIDELINES
The vast majority of rapes are not reported
to the police and attrition is a serious problem at each stage
of the process resulting in a national conviction rate for reported
rape of just 5.29%. The Sexual Offences Act 2003 clarifies the
law around rape and sexual offences and a considerable amount
of work has been carried out by both the Sentencing Advisory Panel
and the Sentencing Guidelines Council. We broadly welcome the
draft guidelines and have limited our response to a few key areas.
The relationship between the victim and the offender
We warmly welcome the confirmation that relationship
and acquaintance rape should be treated as seriously as stranger
rape (para 2.6).
The offender's culpability in non-consensual offences
We have concerns about the proposal that an
offender's culpability would be lessened where the victim had
consented to sexual activity immediately before the offence took
place (para 2.18). We note that the wording in Millberry and
in the Panel's advice (page 17) that culpability would be "somewhat
less" has become "less" in the guidelines leaving
significant discretion to the judge to interpret how much less.
The experience of those who work with victims
of rape shows that many rapes occur after initial consensual sexual
activity or intercourse and can be as serious, or more so, as
cases where there has not been consensual sexual activity. Furthermore,
consensual sexual activity does not, per se, demonstrate a lack
of planning. This guideline contradicts the clear statement that
acquaintance rape is as serious as stranger rape. It minimises
the seriousness of rape in these circumstances and undermines
a woman's right to withdraw consent at any point, which is a fundamental
principle of the right to autonomy. This proposal could also be
in conflict with abuse of trust as a factor indicating higher
culpability.
AGGRAVATING AND
MITIGATING FACTORS
The draft guidelines set out aggravating and
mitigating factors that apply to a wide range of cases on pages
12 and 13. It would be helpful to make it clearer that not all
these factors are relevant to sexual offences and in particular
that "a greater degree of provocation than normally expected"
should never be considered when sentencing for these offences.
June 2006
1 S Walby and J Allen, Domestic violence, sexual
assault and stalking: Findings from the British Crime Survey,
HORS 276, 2004. Back
2
Ibid. Back
3
Source: Home Office. Back
4
Ibid. Back
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