Sentencing for rape is governed by the Sentencing Council’s definitive guideline. In simple terms, judges look at two things – the level of harm said to have been caused, and the offender’s alleged culpability.
Those two factors place a case into one of six possible sentencing brackets, each with its own starting point and range. The judge then moves the sentence up or down within that range to reflect aggravating and mitigating features, previous convictions, and any reduction for a guilty plea.
In practice, much of the sentencing argument centres on exactly where within that framework the case should be placed.
Rape is treated by the courts as one of the most serious criminal offences. Even cases at the lowest end of the guideline have a starting point of five years’ imprisonment. At the top end, starting points are fifteen years.
The Six Guideline Permutations
The guideline combines three levels of harm with two levels of culpability, creating six possible sentencing starting points.
Harm is divided into three categories:
Category 1 covers the most serious cases, involving severe additional harm beyond that inherent in rape, such as significant physical injury, abduction or severe psychological impact supported by evidence.
Category 2 reflects serious impact without those extreme features.
Category 3 applies where additional harm beyond that inherent in the offence is not established.
Culpability is divided into two levels. Culpability A applies where features indicating a higher level of responsibility are present, such as planning, targeting of vulnerability, abuse of trust or violence beyond that inherent in the act. Culpability B applies where those features are absent.
For an offender aged 18 or over, the six sentencing brackets are as follows:
- Category 1 harm / Culpability A – starting point 15 years, range 13 – 19 years.
- Category 1 harm / Culpability B – starting point 12 years, range 10 – 16 years.
- Category 2 harm / Culpability A – starting point 10 years, range 8 – 13 years.
- Category 2 harm / Culpability B – starting point 8 years, range 7 – 11 years.
- Category 3 harm / Culpability A – starting point 7 years, range 6 – 9 years.
- Category 3 harm / Culpability B – starting point 5 years, range 4 – 7 years.
Basis of Plea – Excluding Parts of an Allegation
It is not uncommon for a defendant to accept the substance of an allegation but dispute certain aspects of the prosecution’s account, such as the level of force said to have been used, whether there was planning or targeting, or other peripheral features.
In those circumstances, a basis of plea is a crucial tool. This sets out the precise factual foundation upon which the guilty plea rests. If agreed by the prosecution, it becomes the framework for the sentencing hearing.
If the basis is not agreed, the judge must consider whether the disputed issue would make a material difference to sentence. If it would, the court may order a Newton hearing – a fact-finding exercise similar to a trial, in which evidence is heard and findings are made before sentence is passed.
This stage involves careful judgment. Advancing a basis of plea requires a considered assessment of which issues genuinely affect category placement or movement within the sentencing range, and which do not. An effective lawyer must balance the strength of the evidence, the potential impact on sentence, and the risks of inviting a contested hearing. If a defendant loses a Newton hearing, he or she potentially loses all credit for the guilty plea, which makes a significant difference in rape cases.
Sentencing Submissions and Category Placement
The sentencing guideline provides broad categories and general descriptions of aggravating features – but we sometimes see that certain cases do not always fall neatly within a single bracket.
There is scope to debate whether particular aspects of a case are fairly characterised within a higher harm or culpability category. Submissions by defence counsel on placement within the guideline can therefore have a profound impact on sentence. For example, a shift from Category 1 to Category 2, or from Category 2 to Category 3, can represent several years’ difference in prison time.
After a starting point is established, the judge can make further adjustments depending on the aggravating or mitigating features. This is another crucial aspect where thorough preparation and effective advocacy can play a defining role. This may include obtaining evidence of previous good character, highlighting youth or immaturity, or commissioning medical reports addressing neurodevelopmental factors and/or mental health evidence.
Ultimately, sentencing for rape is structured, but it is the argument over how the facts are to be understood within that structure that often decides the sentence.
See our Rape Allegations service page for more information.
If you would like to speak to a member of our specialist defence team for confidential advice call 0333 240 7373 or email [email protected] or complete our online contact form.