Last week, the UK Sentencing Council published a new guideline for sentencing under the Sexual Offences Act 2003. The guideline makes a number of reforms related to the manner in which sexual offences are committed – for example, making an offence more serious if it is recorded and uploaded online. But the focus of the new guideline was its endorsement of the idea that judges should consider long-term ‘psychological harm’ when sentencing.
The guideline has been welcomed as a significant step forward for victims’ rights in the justice system. Baroness Newlove, the government’s victims’ commissioner, responded to the guideline by saying ‘victims of such disturbing crimes as [sexual offences] need support long after the verdict is in. The system needs to fit around them and not the other way around.’ The chairman of the Sentencing Council, Lord Justice Treacy, said of the new guideline that its ‘approach will enable sentences that reflect what the victim has been through and take in a full profile of what the offender has done’.
While the guideline has been welcomed as a victory for victims, it is in fact anything but. The approach encouraged in the guideline could actually punish certain victims for having certain attributes. Take, for example, an offender who happens to rape or abuse a complainant who is psychologically robust. The guideline allows for that defendant to receive a less severe sentence than an offender who commits the same crime against someone who suffers long-term harm. Can we really say that two victims who experience objectively the same crime should be distinguished on the basis of their differing responses to it? Are we really ready to say that an offence committed against someone who does not suffer long-term harm is less serious than the same crime committed against someone who does?
Of course, evidence of ‘psychological harm’ will be impossible to measure or challenge. Where in the past the process of sentencing involved the assessment of the objective evidence used to convict a complainant, today the victim’s word is becoming more and more influential. The Sexual Offences Act allowed judges to consider victim-impact statements for the first time, meaning a judge could read an account given by a victim before deciding the sentence.
In October, the publication of a new Code of Practice for Victims of Crime meant that victims would be permitted to read their victim-impact statements out in court at the end of a case, which marked an unprecedented introduction of emotion into traditionally sombre and methodical criminal proceedings. The new guideline means that the unquestionable word of the victim will lead to a defendant receiving a harsher sentence, with no real prospect of scrutinising the material used to inform that judgement.