Mitigating factors also play a role in reducing sentences in child abuse cases, both recent and non-recent; however, there is an inherent unfairness when we look at one particular mitigating factor allowed in historic child abuse cases not available for cases involving current or recent abuse. The sentencing guidelines for non-recent abuse explain that, where there is an absence of further offending over a long period of time, especially when combined with evidence of good character, the court would be allowed to treat this as a mitigating factor.
Setting aside the difficulties in defining 'good character' in this context, this mitigating factor is hugely misleading, and could be responsible for terrible miscarriages of justice. For instance, where, say, a 70-year-old stands trial following sexual offences against children which began when he was 20 and lasted for 30 years until his libido was impeded, those 20 years of non-offending could potentially be taken into account and viewed as a mitigation of crimes which still spanned decades.
This mitigating factor, then, could also offer some insight into why sentencing of non-recent child abuse offenders could be relatively lower still than those being sentenced for recent child abuse, especially when combined with a judge's ability to take into account the offender's age at the time of trial, and if an elderly offender looks frail or unwell. The court may also take the view that it is not in the public interest to jail an elderly offender who no longer poses a threat to society at large. This view, of course, does not take into account the need for justice sought by victims and survivors of abuse.
Other mitigating factors which apply to both recent and historic child sexual abuse offences include the maturity of the offender at the time of the incident(s), any admissions the offender made around the time of the events which were not properly investigated, and an early guilty plea. These points, if raised and accepted by the court, could also reduce sentences in child sexual abuse cases.
Evidence has always been a problematic area in child abuse cases, both recent and non-recent. Child abuse usually happens behind closed doors, and, by the time a child comes to the attention of child protection or medical professionals (if they ever do), signs of abuse may have long gone. These issues are aggravated in non-recent cases of abuse as evidence is even less likely to exist after long periods of time, and many children do not come forward until they have become adults as a result of the shame and sometimes deep trauma they experience. This profoundly affects a realistic prospect of conviction, especially where allegations simply come down to the victim's word against that of the accused. Without robust evidence a victim of child abuse would, at best, secure a minimal sentence against their abuser, and, at worst, be unable to mount a case at all. Less access to evidence, then, could also reduce an offender's sentence and explain why some sentences remain low despite the severity of the crimes outlined.
An even more disturbing trend in lenient sentencing of historic child abuse cases has been highlighted by a recent case
which featured two men, aged 59, both charged with non-recent sexual offences against young girls. Here, the Court of Appeal interpreted s 236A of the Criminal Justice and Courts Act 2015 to mean that custodial sentences for historic child abuse allegations should be lowered, rather than include an additional period on licence. It has been argued that the Court of Appeal has misinterpreted Parliament's intentions
, but the ramifications of the judgment may be far-reaching, and could result in future sentences for non-recent abuse set lower than they should be.
While variations within historic child sexual abuse sentences can be understood through reasonable mitigating principles and a lack of evidence brought on by the passage of time, there are very real concerns about the way offenders of non-recent abuse continue to be sentenced and which bolster the view that unmerited leniency has managed to find its way into the system. It is our duty to explore these gaps, and try to develop the law so that it better serves survivors and victims of abuse.
You can follow Natasha Phillips on Twitter: @SobukiRaThe views expressed by contributing authors are not necessarily those of Family Law or Jordan Publishing.