Judge: victim "condoned" and "acquiesced" in her rape

Lord  Carloway, who allowed the appeal.

HM Advocate v. SSM is a case of rape, and a case of the sexual abuse of children. In May this year, SSM was foung guilty by a jury in the High Court in Glasgow of seven charges. These are summarised in the Appeal Court's judgment this afternoon. I caution you. The details are unpleasant. But understanding the facts of the case is critical to contextualise the anonymous  trial judge's remarkable - and in many ways, appalling - commentary upon them. 

[1] ... The first (charge 1) was one of using lewd practices on various occasions against AdM, a boy aged between 9 and 10, in 2007-2008, including handling the boy’s penis, attempting digital penetration of his anus, compelling the boy to masturbate him and oral penetration of the boy with his penis. The second (charge 2) was indecent assault, again on various occasions during the same time period, against the boy in the form of attempted sodomy. The third (charge 7) was using lewd practices on various occasions against TD, a girl aged between 12 and 14, in 2008 to 2010, including digital vaginal penetration, contrary to section 6 of the Criminal Law (Consolidation) (Scotland) Act 1995. 

In relation to the adult complainers, the fourth and fifth (charges 13 and 15) were libels of indecent assault against CD in 2008 to 2010 in the form, first, of one incident of continued penile penetration of the anus after the withdrawal of consent and, secondly, of penile penetration of the anus on various occasions. The sixth (charge 18) involved anal rape of CD on various occasions from 2010 to 2013, contrary to section 1 of the Sexual Offences (Scotland) Act 2009. The seventh (charge 19) was the anal rape of AM, his wife, on one occasion in 2013, contrary to the same statutory provision.

An ugly indictment then. What did the sentencing judge make of it? It is difficult to know where to begin with his commentary on the case. With characteristic understatement, the Appeal Court notes that "in his report, the trial judge has made a number of observations about the sentencing of sexual offences involving both children and adults. Some of these may be regarded as controversial." "Controversial" hardly covers it. In handing down a five year prison sentence, and in explaining his decision to the Appeal Court, the judge made the following observations.

• Assessing the gravity of the anal rape of AM, "the judge classified the level of criminality and level of harm suffered as “minor”, involving only “a transient sense of violation”. He "considered rape to be a species of aggravated assault and that this incident equated with an assault to injury which might have been prosecuted at summary level."
• He had this to say about the second adult complainer, CD: "CD described an occasion when she had, at the respondent's request, agreed to try anal sex for the first time. This had been on the basis that they would stop if it were painful. It was painful, but the respondent had not stopped when asked to do so. He had had anal sex with her on 3 or 4 occasions without her agreement. None of the anal rapes were reported to the police at the time. They would not have been reported but for the police inquiries. Under reference to Stallard v HM Advocate, the judge refers to CD “condoning” or “acquiescing in” the rapes. He refers to CD freely choosing to continue to live with the respondent after the rapes had occurred. This he regarded as such “powerful mitigation” that he might have considered an admonition as an option, had the convictions involving CD stood alone."
• Explaining the fairly modest sentences handed down for the offences against the children, the judge indicated that he'd had regard to his "impression of the effect of the offending on the children" and "of the effect that more severe punishment might possibly have, taking into account the guilt that child sex abuse survivors are often said to experience, particularly where family and relationship break-up is involved." As the Appeal Court note, the judge "had no basis for his theories about feelings of guilt in abused children or for reducing any sentence on account of his impression of the robustness of the children." 

But it as paragraph 11 of the Appeal Court's judgment where we really slip into the jurisprudential twilight zone. Condemning the prisoner as a “coward and a bully”, eking out “a benefit-grubbing existence ... sponging off women”, the trial judge decided to share his thoughts with the Appeal Court on a diverse range of considerations:

• In relation to the adult complainers, the main thrust of the plea in mitigation was the impact of the offences against the background of general sexual promiscuity. The judge describes the offences as “essentially non-violent relationship rapes”. He reports that juries do not convict of such rapes because, according to “received wisdom”, High Court sentences for such offences are disproportionate. In this context, he challenges the need for all rapes to be tried by jury, given the low conviction rate and the multiple traumatic experiences of complainers in being raped, then subject to: (a) the investigative process, (b) the wait for trial, (c) the cross-examination, (d) a possible acquittal; and (e) a return to the community with the stigma of having been disbelieved.
• The judge points to the spectrum of seriousness in rape sentencing as illustrated by Scottish practice and in the England and Wales Definitive Guideline. He asks whether there is a lower custodial limit for rape sentences. He speculates that, but for the existence of 2 adult complainers and the libel of anal (as distinct from vaginal) penetration, no convictions would have followed. However, whilst considering that the rapes were “at the lower end of the seriousness scale” he reports that he did not regard the respondent's relationships with the complainers as mitigatory per se.

But Lords Carloway, Matthews and Bracadale were having none of it:

"The trial judge has also made some pithy remarks about prosecution policy, jury reaction and related matters. It may be that others may share some of his thoughts, but many will undoubtedly not. The short point is that, whatever a judge’s own views may be, he must sentence on the basis of the crimes of which the respondent has been convicted, albeit in the contexts in which these crimes have been committed, in light of current Scottish sentencing principles and practice."

Concluding that SSM "clearly poses a threat of serious harm to the public" and "notably women with young children", the Appeal Court quashed the five year custodial sentence and substituted an eight year prison term and four years of supervision after release in the interests of public safety. It is remarkable - quite remarkable - that any trial judge would treat a note of appeal against sentence as an opportunity for a general meditation on such diverse topics as prosecution policy and jury reactions to complainers. A jury having returned a guilty verdict in respect of all of these charges, it is remarkable that a trial judge would speculate on what might - or ought - to have happened if the indictment had alleged multiple sexual assaults of a different character. 

But it is the attitudes disclosed in the judge's note which are most disturbing. The Appeal Court's judgment relates only sections of this document. But the sections related stand starkly at odds with the hard-won modern understanding that rape is a distinctive and serious wrong. Lord Carloway summarises it well: 

"Rape may often, if not always, be a crime of violence, but it is not an aggravated assault. It is a separate crime involving the violation of a person’s sexual integrity."

The idea that a victim "condoned" their own rape, or that they "acquiesced" in it - the idea that the "guilt" of victims of child abuse weighs against a more severe penalty being imposed on their abuser - I'm stunned that any judge of the High Court would even contemplate these views, never mind setting them down in writing for senior colleagues, reviewing their sentencing decision.  Just stunned. Wrongheaded, outdated, and wrong, wrong, wrong.