SENTENCING RAPE – A COMPARATIVE ANALYSIS

Abstract

This thesis presents a comparative study of how the courts in various common law jurisdictions sentence the crime of rape. The thesis begins by considering the seriousness of the offence through a review of the medical literature on the physical and psychological effects of rape. The legal and philosophical literature on the wrongness of rape is then considered, along with the victim’s role in sentencing.

The discussion then turns towards sentencing practice in four jurisdictions: Scotland, England and Wales, New Zealand, and the Republic of Ireland. By employing a legal comparativist approach, the thesis compares rape sentencing across these jurisdictions in order to suggest possible reform of how the offence is sentenced in Scotland. The study thus presents a historical, philosophical and juridical analysis of rape sentencing. In particular, reliance is placed on analysis of reported case law, appellate sentencing guidance, appellate sentencing guidelines and, where applicable, formal guidelines issued by statutory bodies along with associated academic commentary.

Having considered the sentencing methodology of the courts in each of the four jurisdictions and having proceeded to consider the nature of any general sentencing guidance or particular sentencing guidelines, the thesis argues that reform of Scottish sentencing practice for rape is required. In particular, it is argued that sentencing guidelines are required in Scotland to guide judicial sentencing discretion. It is also argued that such sentencing guidance as does exist in Scotland – especially regarding the sentencing of relationship rape – neither adequately reflects the seriousness of the offence nor reflects modern societal attitudes towards rape. Drawing on the experiences of the courts in the three other jurisdictions examined in the thesis, the study concludes by making suggestions for the reform of Scottish sentencing practice.