Summary and implications

An overhaul of the Sexual Offences Sentencing Guidelines will focus on psychological harm rather than physical harm. The guidelines were published on 12 December 2013 and will come into force on 1 April 2014 and bring the following key changes:

  • Previous good character can be considered an aggravating factor where used to facilitate an offence.
  • Removal of "ostensible consent" – the idea that a child over 13 can agree to sex.
  • New aggravating feature of recording the crime, to take into account advances in technology.
  • New offences concerning an abuse of a position of trust over children.
  • Increased sentences for some offences, such as rape.

In the wake of the Saville inquiry and instances of large-scale grooming of children, it comes as no surprise that the Sexual Offences Sentencing Guidelines have been amended. The focus has shifted from the physical harm caused by offenders to the psychological and long-term impact on victims.

"Previous good character"

The Saville inquiry in particular demonstrated the potential for someone with influence over their victims, to abuse that trust. Whilst an abuse of trust has always been considered an aggravating factor in sentencing for sexual offences, an offender's "good character" has previously been a point of mitigation of the offence. The new guidelines however consider that there may be circumstances where an offender uses their "previous good character" to facilitate their offending. Whilst this concept may have originated by consideration of large-scale abuse by celebrities and instances of grooming by gangs, it is also relevant to any scenario where there is an abuse of a position of trust.

Doctors are particularly vulnerable in this regard given their special relationships with their patients. Whether this be in the context of a single incident or a series of incidents, it may be open to a judge to find that a doctor's long standing "good character" may have influenced a patient that their doctor's conduct was proper or that it may have been medically warranted.

When advising medical practitioners or other health professionals in a position of trust for any offences brought before the Court after 1 April 2014, it may be open to Judges not only to discount "previous good character" as a mitigating factor but to hold a doctor's previous unblemished career against them. The result of this may be a longer sentence than would have been given previously.

This will impact on the decision to call "testimonial evidence" at a criminal hearing. In the absence of expert or lay evidence, a doctor is currently only able to rely on his usual practice and good name to assert that the allegations are untrue. If "good character" is an aggravating feature, then it would clearly not be in the interests of a doctor to call a list of people to underline the very factor that may aggravate the sentencing. Clearly this must be weighed against the chances of the doctor being found guilty as a consequence of the jury being impressed by testimonial evidence to the extent that a not guilty verdict is reached. This is something that needs to be carefully considered by the doctor's defence team.

It is important to advise all health professionals in sexual offences cases of the likely sentencing options at the very outset of a criminal investigation as it will enable them to make a fully informed decision on plea and where guilt is admitted to gain the maximum credit early admissions.

The new guidelines are available here for download.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.