Sexual history mitigates rape? It does in Scotland...

In 2011, Ken Clarke, then serving as Lord Chancellor and Justice Minister in the UK government, got into serious bother when he referred to "serious rape" in a radio interview. Labour called for his resignation, he eventually got the heave-ho, replaced by Chris Grayling, and the row died down.  Rather less likely to hit the UK news headlines is a decision of the Court of Criminal Appeal, handed down this morning, in Her Majesty's Advocate v. Cooperwhite. 

It transpires that, according to Scots criminal law, raping someone with whom you have any sexual history, even years after you ceased to have sexual contact, actually mitigates the seriousness of the offence on sentencing.  

In February of this year, Cooperwhite was convicted of sexually assaulting two women, and was sentenced to six years in prison.  The Crown appealed, arguing that this sentence was unduly lenient, given the facts.  A panel, consisting of Lords Carloway, Eassie and Bracadale rejected the appeal, holding that the sentence, while lenient, fell within the "range of sentences which a trial judge, applying his mind to all relevant factors, could reasonably have considered appropriate." In the course of their submissions, and with reference to authorities of the court, Cooperwhite's lawyers argued that: 

'... "familiarity" between a rapist and his victim was regarded as something justifying a more lenient sentence than might normally have been thought appropriate.'

Ultimately, the appeal was rejected on other grounds, but in an unusual move, Lord Carloway appended "further considerations" to his opinion, on the question of whether, as a matter of law, raping a sexual partner, friend, or person known to you represented a mitigating factor in determining the punishment to be imposed. Discussing the Appeal Court's past cases, Carloway concluded - to my mind, shockingly - that:

"It is undoubtedly correct, as the respondent submitted, that the existence of both a pre-existing and an existing sexual relationship has been regarded by the court, in the past, as a mitigating circumstance."

He gave a couple of examples. The 1999 case of Ramage, where the the convicted man and the complainer "had been in a relationship of a sexual nature, but that this had ceased some six years" before the sexual assault of which he was convicted. Reducing his sentence from five years to three and a half years imprisonment on appeal, Lord Caplan made this outrageous statement:

"... there are factors in this case which could perhaps justify treating the case as being less serious than would normally be the case with a rape offence. The appellant and the complainer were not in any sense strangers. They had been in an intimate relationship before and, indeed, at one point they had been in a sexual relationship. Moreover they had resumed friendship and were seeing each other regularly (although it must be acknowledged that the complainer in no way gave the appellant to understand that she was prepared to resume a sexual relationship with him). Nevertheless, there was perhaps room for the appellant to delude himself as to what the position was on that point. Beyond the rape itself there had been no serious degree of personal violence and the appellant was not likely to repeat this conduct with other women".

As Carloway notes in today's opinion:

'It may be that the repetitive use of the word "perhaps" shows that the court may have felt somewhat uncomfortable with what it was saying and, indeed, with the import of its dictum. Nevertheless, that dictum seems to be clear authority for the proposition that, if there has been a prior sexual relationship, that is a mitigating factor. Indeed, following the logic of the dictum, mere acquaintanceship may be such a factor, at least when compared with the rare "stranger rape".'

The principles have also been applied more recently, in the 2012 case of Petrie, in which the appeal court reduced another sentence from seven to five years, illustrating, said Carloway:

"... the court being prepared to regard the existence of an on-going sexual relationship as a significant factor in reducing a sentence imposed by a trial judge, who regarded the existence of that relationship as one of trust and hence an aggravating feature of the crime."

Many of you will, I'm sure, sympathise with the trial judge's sentiments. Ken Clarke's ill-judged and clumsily-phrased observations represented only his own opinion. These statements are the law of Scotland. Carloway's opinion, rightly, expresses muted unease with these authorities, and their outmoded logic. The idea that being raped by your sexual partner, husband or boyfriend counts in their favour if and when it comes to sentencing is a disgusting juridical principle, whose elimination from our sentencing book is long overdue.