Child rapist gets community service

[Planigale]

I will never understand this pedantic sidetrack about regional variances in the legal definition of rape.

We can call oral rape rape, even if Scottish law does not. We can condemn Scottish law for being more lenient towards oral rape (if indeed it is), rather than accept that leniency as a just result of oral rape not being rape-rape under the law.

You misread the quote. It is to clarify that in Scotland rape is the insertion of a penis into any orifice of a person of any sex or gender; it is the same offence. In some countries rape is only the insertion of a penis into a vagina.

The reason for the leniency is the age of the perpetrator at the time of the crime. There were other reasons that if you were interested are given in the details of the case. One key issue was the judge did not feel there was a public protection issue, that there was little likelihood that there would be a repeat offence. Under Scottish law for those under 18 punishment is not an indication for incarceration, public protection would be.

 

[lionking]

The Gillick ruling applies in Australia after a High Court decision. It sounds like it’s a pretty decent benchmark.

 

[dudalb]

No that is not what is being argued. I think it's wrong to mischaracterise the argument if you are interested in rehabilitation as well as protection for society.

I am interesting in both, but the second should have priority. And, frankly, some people are so far gone they cannot be rehabilitated and need to be locked up for their natural lives.

 

[RolandRat]

You misread the quote. It is to clarify that in Scotland rape is the insertion of a penis into any orifice of a person of any sex or gender; it is the same offence. In some countries rape is only the insertion of a penis into a vagina.

The reason for the leniency is the age of the perpetrator at the time of the crime. There were other reasons that if you were interested are given in the details of the case. One key issue was the judge did not feel there was a public protection issue, that there was little likelihood that there would be a repeat offence. Under Scottish law for those under 18 punishment is not an indication for incarceration, public protection would be.

Oh well, that's ok then, he wont do it again, we think, so let's get him out picking up litter, that's enough for raping a 13 year old and potentially leaving her with life-long trauma. He was only 17 or 18 at the time, it's not as if he knew forcing a young girl to suck him off was wrong..

The law here is unfit for purpose and needs changing. He should have got prison time.

 

[Architect]

A friend of mine, sadly passed away, was normally Chief Inspector of Prisons for the Scottish Government. He did not deal with sentencing of course, but noted that this considered three strands (which may have been concurrent):


- Protection of the public,i.e. the likelihood of reoffending.
- A punative element, part of which was deprivation of liberty.
- Rehabiliation


It seems to me that what Rat and others object to is the second of these. That may be a fair point but I'm not sure as I've not read the sentencing report and cannot readily find it online. Instead I find realtively brief statements by the likes fo RapeCrisisScotland. Presumably, given the views expressed above, some of you have seen the detailed findings and I would be grateful for a pointer.


Until the facts are all know, however, I don't see how anyone can (for example) claim that that the law is unfit for purpose.

 

[RolandRat]

I don't see how anyone can (for example) claim that that the law is unfit for purpose.

It allowed a rapist to be given a 270 hour community order.

 

[Architect]

So why is the law the problem rather than, for example, sentencing guidelines?

 

[dudalb]

A friend of mine, sadly passed away, was normally Chief Inspector of Prisons for the Scottish Government. He did not deal with sentencing of course, but noted that this considered three strands (which may have been concurrent):


- Protection of the public,i.e. the likelihood of reoffending.
- A punative element, part of which was deprivation of liberty.
- Rehabiliation


It seems to me that what Rat and others object to is the second of these. That may be a fair point but I'm not sure as I've not read the sentencing report and cannot readily find it online. Instead I find realtively brief statements by the likes fo RapeCrisisScotland. Presumably, given the views expressed above, some of you have seen the detailed findings and I would be grateful for a pointer.


Until the facts are all know, however, I don't see how anyone can (for example) claim that that the law is unfit for purpose.

Problem with Rehablitation is I am not sure it works all that well when you are dealing with, for lack of a better word, psychotics with violence tendacies.
I am skeptical about letting Serial Killers out, ever.

 

[Architect]

Problem with Rehablitation is I am not sure it works all that well when you are dealing with, for lack of a better word, psychotics with violence tendacies.
I am skeptical about letting Serial Killers out, ever.

That would be assessed under the "protection" element.

 

[Architect]

So why is the law the problem rather than, for example, sentencing guidelines?

Just to take this a little further, what the Sexual Offences (Scotland) Act 2009 actually says is:


2 Sexual assault by penetration

(1)If a person (“A”), with any part of A's body or anything else—

(a)without another person (“B”) consenting, and

(b)without any reasonable belief that B consents,

penetrates sexually to any extent, either intending to do so or reckless as to whether there is penetration, the vagina or anus of B then A commits an offence, to be known as the offence of sexual assault by penetration.


That's a wide definition of rape. It's hard to see what objection can be taken to it, especially given the subsquent sections regarding withdrawal of consent.


We then have sections 28 and 29. These classify rape of a child over the age of 13 seperately from very young children. Nonetheless it's clear that it's a criminal offence and hence hard to see what the objection can be.


Maximum penalties (i.e. sentences) are then set out in Schedule 2 of the Act. That provides, in the case that the vactim is between 13 and 16 years old, for a period of up to 10 years, a fine, or both. Again, against the background of UK (as opposed to US) sentencing, up to 10 years does not seem unreasonable.


It is therefore difficult, if not impossible, to support a suggestion that the law is wrong. The problem is presumably the sentencing guidelines.

 

[jeremyp]

Problem with Rehablitation is I am not sure it works all that well when you are dealing with, for lack of a better word, psychotics with violence tendacies.
I am skeptical about letting Serial Killers out, ever.

It's not one of those three bullet points, it's all of them and just because people who exist who can't be rehabilitated, doesn't mean we shouldn't try with everybody else.

 

[Architect]

It's not one of those three bullet points, it's all of them and just because people who exist who can't be rehabilitated, doesn't mean we shouldn't try with everybody else.

In England there is, I understand, specific provision for whole life sentences. Scotland is different:

https://www.scottishsentencingcouncil.org.uk/about-sentencing/myth-buster/


This is the key section:

When people are sentenced to life imprisonment, the judge must, by law, set the punishment part - the minimum time the person will spend in prison before they can be considered for release at all. After that minimum time, they will remain in prison unless the Parole Board for Scotland decides that they are safe to be released into the community under lifelong conditions. When setting the punishment part of a life sentence, judges can set a period which is likely to 'exceed the remainder of the prisoner's natural life'. This can result in a whole life sentence. Information on the factors which are taken into account by the Parole Board for Scotland when considering release on licence is available on its webpage.

So, depending on circumtances and the initial offence(s), someone can be detained for a lengthy period if required to protect the public.

 

[theprestige]

Until the facts are all know, however, I don't see how anyone can (for example) claim that that the law is unfit for purpose.

So why is the law the problem rather than, for example, sentencing guidelines?

You seem to have reached a conclusion based on a distinction you think is important, but that you are eliding for the rest of us. Why not speak plainly?

 

[Darat]

...snip...


It is therefore difficult, if not impossible, to support a suggestion that the law is wrong. The problem is presumably the sentencing guidelines.

It's not uncommon in everyday language to use "the law" to cover sentencing and the legislation and even the policing. I think from context that is what RolandRat is criticising i.e however the matter is legally structured the result was wrong.

 

[Architect]

You seem to have reached a conclusion based on a distinction you think is important, but that you are eliding for the rest of us. Why not speak plainly?

I'm not sure what the problem with using technically correct language - on a skeptic forum - might be. If someone, especially someone very vocal, declines to acquaint themselves with such issues and identify the actual area(s) of concern then perhaps another group may suit them better.

There is, in fact, absolutely nothing wrong with the law. There may indeed be a very major problem with the judge's application of sentencing guidelines. Certainly the public think there can be. Here is an extract from a 2019 survey:

Participants were asked whether there were any circumstances or types of sexual offence whereaprison sentence should always be given. There were members of the public and survivors who thought all sexual offences on the list should warrant a custodial sentence, however, this was not a commonly held view. A more widely expressed view, among both members of the public and survivors of sexual offences, was that certain sexual offences should always be given a prison sentence.

The summary stated:

Among members of the public there was a view that sentencing should address offending behaviour and offenders should have access to support toaid rehabilitation.Therewere participants whodid not think sentencing for sexual offences was sufficiently aimed at rehabilitating offenders. Treatment options were suggested as a route to deter reoffending and to tackling offending behaviour.

My view is that a jail sentence for any crime of this nature is warranted, but I am not party to the facts or the case or the Crown Narrative setting out the basis for sentencing. Sight of the latter would be particularly helpful in reaching a view on the reasonableness or otherwise of the sentence. Without that, I don't see how some posters here can speak with such certainty about where the errors were actually made.

 

[RolandRat]

So why is the law the problem rather than, for example, sentencing guidelines?

You are absolutely correct, the sentencing guidelines, which I believed to be law, in Scotland, are the issue.

“A custodial sentence should only be imposed on a young person when the court is satisfied that no other sentence is appropriate. If a custodial sentence is imposed on a young person, it should be shorter than that which would have been imposed on an older person for the same, or a similar, offence.”

edit - It seems the judge has the final say in this. If this is the case, that judge is an arse.

 

[RolandRat]

It's not uncommon in everyday language to use "the law" to cover sentencing and the legislation and even the policing. I think from context that is what RolandRat is criticising i.e however the matter is legally structured the result was wrong.

Absolutely. I find it astounding this crime got a community service order. What message does that send to victims of such crimes?

 

[theprestige]

I'm not sure what the problem with using technically correct language - on a skeptic forum - might be. If someone, especially someone very vocal, declines to acquaint themselves with such issues and identify the actual area(s) of concern then perhaps another group may suit them better.

There is, in fact, absolutely nothing wrong with the law. There may indeed be a very major problem with the judge's application of sentencing guidelines. Certainly the public think there can be. Here is an extract from a 2019 survey:

The summary stated:
My view is that a jail sentence for any crime of this nature is warranted, but I am not party to the facts or the case or the Crown Narrative setting out the basis for sentencing. Sight of the latter would be particularly helpful in reaching a view on the reasonableness or otherwise of the sentence. Without that, I don't see how some posters here can speak with such certainty about where the errors were actually made.

Already addressed by Darat.

 

[Nessie]

Prison is for the violent and persistent offenders who show no sign of stopping. Certain violent offences, such as rape, should attract an automatic prison sentence and the rehabilitation that the Sentencing Council argue works with the under 25s, should happen within a prison context.

A repeat violent offence should attract a very long sentence, since the offender has been given a chance to rehabilitate.

 

[Architect]

You are absolutely correct, the sentencing guidelines, which I believed to be law, in Scotland, are the issue.

No, they're not the law but they are approved by the High Court of the Judiciary and judges are required to follow them. The guidelies are developed and issued by the Scottish Sentencing Council, an independent NDGB (I am aware that could be called an oxymoron).


The guidelines for young people clearly state the overarching purposes of sentencing to be (para. 13):

... in no order of priority: protection of the public; punishment; rehabilitation of offenders; giving the offender the opportunity to make amends; and expressing disapproval of offending behaviour.

I assume that none of us would disagree with that.


They also state (para. 14):

Rehabilitation is a primary consideration when sentencing a young person. When selecting a sentence the court should, where appropriate, seek to rehabilitate the young person and to reduce the risk of reoffending. The character of a young person is not as fixed as the character of an older person, and a young person who has committed a crime may have greater potential to change.

Again, unless you're a "hang-em high" Daily Mail reader (bullying excepted, it appears) then that seems a reasonable proposition.


Turning to determining a period of incarceration (paras. 20-21):

The full range of sentencing options remains open to the court. However, the nature and duration of a sentence imposed on a young person should be different from that which might be imposed on an older person being sentenced for the same, or a similar, offence.
A custodial sentence should only be imposed on a young person when the court is satisfied that no other sentence is appropriate. If a custodial sentence is imposed on a young person, it should be shorter than that which would have been imposed on an older person for the same, or a similar, offence.

Taking us back, this time to para. 6:

the court should assess the seriousness of the offence by evaluating the level of culpability (or blame) and harm. Guidance on assessing culpability when sentencing a young person is set out at paragraphs 10-12 below. The court’s consideration of the level of harm, which includes the impact on any victim or victims, is not affected by the provisions of this guideline.

Hogg was 17 when raped his victim. Now 21, as we know he was sentenced to a community payback order of 270 hours of unpaid work. The Crown is considering appealing the sentence on the basis that it is unduly lenient, which I think we would all agree. The law in Scotland requires, however, that it falls outside the normal range of sentences the judge could have considered. Which takes us back to the Sentencing Guidelines.


So, in summary, the law is not the problem but the guidelines and if the judge has erred (which I think he has) then there is a formal route by which it can be appealed. In the meantime the most appropriate way to prevent a recurrence is not to change the law, but rather the entirely seperate sentencing guidelines.

 

[Architect]

Already addressed by Darat.

Except it wasn't, for the reasons explained above.

 

[Nessie]

The sentence is being appealed.

https://www.bbc.co.uk/news/uk-scotland-65424028

"The sentence of a man who was given community service after raping a 13-year-old girl was "unduly lenient" and should be appealed, the lord advocate has said."

 

[theprestige]

Except it wasn't, for the reasons explained above.

The water is right there in the trough. Only you can decide whether you're going to drink it.

 

[RolandRat]

The sentence is being appealed.

https://www.bbc.co.uk/news/uk-scotland-65424028

"The sentence of a man who was given community service after raping a 13-year-old girl was "unduly lenient" and should be appealed, the lord advocate has said."

That article really sums it up.

The rapists sentence:

"Apart from being given a community payback order, Hogg, from Hamilton in South Lanarkshire, was put under supervision and added to the sex offenders register for three years."

The victims sentence:

"She was diagnosed with PTSD, suffered from panic attacks and self-harmed on a daily basis following the attacks. She also said she had undergone three years of counselling.

The teenager said CCTV was fitted in her home so she could see who was coming to her street and she would not leave the house without one of her grandparents.

She has suffered from anxiety and nightmares and has had relationship problems."

edit - From an earlier article by the BBC published in January this year when these new guidelines went live:

https://www.bbc.com/news/uk-scotland-60137866

"But it makes it clear that the full range of sentencing options will remain open to courts when sentencing a young person."

"But Jamie Greene MSP said he has some concern as he believes the justice system is already "weak".

He told Good Morning Scotland: "I think that many victims of crime will be quite worried and concerned about the sort of language that we are using here, especially those who have been the victims of, for example, gender-based violence or sexual crimes"

As said previously, the judge had the full range of sentencing options available to him. I wonder what on earth was going through his head when he gave out a community order.

 

[Nessie]

....

As said previously, the judge had the full range of sentencing options available to him. I wonder what on earth was going through his head when he gave out a community order.

The Judge was following the Sentencing Council's guidelines. The convicted person fell under the guidelines to give a rehabilitative sentence.

 

[Planigale]

Interestingly the youth accused of rape, but not given a custodial sentence on conviction, has now had the conviction reversed on appeal.

I wonder if the judge was partly influenced in not imprisoning the individual by a sense the conviction was unsound because he misdirected the jury.

https://www.bbc.co.uk/news/uk-scotland-edinburgh-east-fife-67076504

 

[Darat]

Interestingly the youth accused of rape, but not given a custodial sentence on conviction, has now had the conviction reversed on appeal.

I wonder if the judge was partly influenced in not imprisoning the individual by a sense the conviction was unsound because he misdirected the jury.
https://www.bbc.co.uk/news/uk-scotland-edinburgh-east-fife-67076504

Doubt it - if he had thought he'd misdirected the jury he could have dealt with that at the time.

Sadly, I suspect most of us will continue to think a rapist got off on a technicality.

 

[Puppycow]

Sadly, I suspect most of us will continue to think a rapist got off on a technicality.

I’m wondering what to think about it.

Is it likely that he is actually innocent? Or is it more likely that he got off due to an error by the judge?

I don’t know enough to have an informed opinion. Maybe the jury would have found her testimony credible even without the judge’s instructions. I feel awful for her, assuming that she told the truth, but I didn’t see her testify so I don’t know.

 

[sphenisc]

I’m wondering what to think about it.

Is it likely that he is actually innocent? Or is it more likely that he got off due to an error by the judge?

I don’t know enough to have an informed opinion. Maybe the jury would have found her testimony credible even without the judge’s instructions. I feel awful for her, assuming that she told the truth, but I didn’t see her testify so I don’t know.

It's not a question if her credibility, it's about corroboration. Her testimony alone wouldn't be enough to convict

https://en.m.wikipedia.org/wiki/Cor...e of corroboration is,be convicted of a crime.

 

[Darat]

I’m wondering what to think about it.

Is it likely that he is actually innocent? Or is it more likely that he got off due to an error by the judge?

I don’t know enough to have an informed opinion. Maybe the jury would have found her testimony credible even without the judge’s instructions. I feel awful for her, assuming that she told the truth, but I didn’t see her testify so I don’t know.

It's a quirk in Scottish law that needs to be abolished. It's about "corroboration" which means any claim has to be supported by two independent sources. So her word alone cannot convict him if he was pleading not guilty.

The trial judge obviously knew this and I think he deliberately tried to fudge his directions to the jury to try and secure the conviction.

ETA: Ninja'd by sphenisc

 

[Puppycow]

It's not a question if her credibility, it's about corroboration. Her testimony alone wouldn't be enough to convict

https://en.m.wikipedia.org/wiki/Cor...e of corroboration is,be convicted of a crime.

Thanks.

Corroboration is required in Scots law as the evidence of one witness, however credible, is not sufficient to prove a charge against an accused or to establish any material or crucial fact.[8]

Any witness undertaking an oath in court is accepted as being a 'credible witness and as such, their statement to the court must be taken as truth (although a defence lawyer will attempt to prove this not to be the case through cross examination, undermining their character, pointing out inconsistencies, etc.).

Are they really suggesting that any person who takes an oath must be telling the truth?

It seems like often, in cases of sexual assault in particular, it might be difficult to find corroborating evidence besides the testimony of the victim.

 

[Darat]

Thanks.




Are they really suggesting that any person who takes an oath must be telling the truth?

That is always the assumption/starting point, it is in the USA system as well. That is why we have perjury as a distinct crime.

It seems like often, in cases of sexual assault in particular, it might be difficult to find corroborating evidence besides the testimony of the victim.

Yep. It is long past the time for it to be reformed, it might have been justified hundreds and hundreds of years ago, but it isn't today. (ETA: Saying that although not starting from a good point I know Scotland had seen big percentage improvements in successful rape convictions.)

(This is one of the reasons when talking about court matters in the UK you have to be careful to specify which system you are talking about as England & Wales can often be different from Scotland or NI.)