Vulnerable Victims – Sexual Offences Sentencing Guidelines
The definitive sentencing guidelines on sentencing sexual offences involves a step-by-step process where first the sentencing judge has to determine the starting point by identifying the correct category of harm caused by the offence (ranging from Category 1 – 3) and thereafter the degree of culpability of the offender (Culpability A or B). The starting point can then be moved upwards or downwards according to the mitigating and aggravating features of each case.
For many of the offences that fall within the guidelines (including rape, assault by penetration and sexual assault as well as the equivalent child sex offences), one of the factors that places an offence within Category 2 Harm is that the “victim is particularly vulnerable because of personal circumstances”. Whilst the guidelines themselves do not provide a definition of “particularly vulnerable”, they clearly envisaged this should only be held to apply when a victim was “particularly vulnerable” as compared to the majority of victims in similar cases so as to justify a finding of greater harm. Almost by definition any victim is vulnerable, and therefore great care must be taken not to widen the concept too broadly, especially bearing in mind that the consequences of doing so are serious – a significant increase in the starting point relative to an offence falling within Category 3. If sentencing judges are too ready to find that a victim is “particularly vulnerable” then offenders may receive sentences which are, in reality, simply too high.
And yet it appears that this may be exactly what is occurring. It has long been recognised that extreme youth/old age or a recognised disability can render a victim “particularly vulnerable”. However, a number of Court of Appeal cases in recent years have grappled with the meaning of the phrase “particularly vulnerable” with the effect that the class of victims falling within this category appears to have been gradually but significantly widened. Indeed, whilst allowing sentencers (who are usually best placed to make an assessment of the facts) a degree of flexibility and discretion is necessary, there is a real danger that the concept “particularly vulnerable” is being so widely interpreted as to render the first part of the phrase almost entirely meaningless.
The broadening of the circumstances in which victims have been found to have been particularly vulnerable appears to have started with the issue of victims who are incapacitated through sleep/intoxication. In R v Rak  EWCA Crim 882, the victim was a university student who was in effect comatose due to drinking. Mr. Justice William Davis stated: “It is argued that vulnerability as referred to the guideline must refer to permanent characteristics, such as age, be it very old or very young, or some permanent disability. We do not accept that proposition. This young woman was vulnerable due to the position she was in.” [para. 15]. Similarly, in R v Samuel Thomas Bunyan  EWCA Crim 872, another university student was found to be particularly vulnerable due to her personal circumstances because “she was asleep, drunk in bed and a trusted friend had taken advantage of that vulnerability” [para. 25]. In R v LD  EWCA Crim 2575 the court found that a victim who is asleep when sexual activity begins is particularly vulnerable just as a victim who was insensible through intoxication would be.
A number of decisions have followed along the same lines including R v Sepulvida-Gomez  EWCA Crim 2174 (where a victim was regarded as particularly vulnerable as she had drunk half a bottle of wine and was asleep in her boyfriend’s bed and as such was found to be “defenceless”); R v McPartland and another  EWCA Crim 1782 (victim was drunk alone with two older men); Attorney General’s Reference (R v BN)  EWCA Crim 1250 where the court said that they “find it difficult to see how a child or adult who is asleep when the sexual activity begins and, therefore does not know what is happening and so is powerless to resist or protest, could generally be anything other than particularly vulnerable due to their personal circumstances” [para. 25]; Attorney General’s Reference (R v Behdarvani-Aidi)  EWCA Crim 582 (where victims were intoxicated with drink and drugs). It appears, therefore, that the law in relation to particular vulnerability arising from sleep/intoxication is well-established.
In other cases, findings of particular vulnerability have gone much further than anything to do with a victim’s age, disability or due to sleep/intoxication.
In the case of Regina v KC  EWCA Crim 1632 the Court considered competing arguments as to whether a child was particularly vulnerable due to personal circumstances when a complainant was in a familial relationship with their abuser, there was a grooming element and a pattern of abusive behaviour spanning a lengthy period of time. Green LJ stated:
“It is not sensible to seek to construe the Guidelines as if they were a statute. They cannot predict every permutation of circumstances that might arise and there must be a degree of elasticity in the terminology used, and to this extent there is a degree of flexibility in how the guidelines operate. In this case the combination of the factors applicable to this offending are, broadly, within the rubric ‘Child is particularly vulnerable due to …personal circumstances’” [para. 45].
KC was followed in a recent appeal by the Solicitor General against a sentence on the grounds that it was unduly lenient R v DP  EWCA Crim 57. In that case the Judge had placed the offence in Category 3A, declining to make a finding of particular vulnerability in respect of a victim who suffered from no relevant disability, was in mainstream school and lived with her mother and sister with other family members nearby. The Court found that there was a combination of factors almost exactly the same as applied in KC and that a child who was in a familial relationship with their abuser and who was being abused over a period of time was particularly vulnerable.
Another recent case perhaps illustrates the extent to which meaning of being “particularly vulnerable” has been widened further to include a range of personal characteristics such as religious faith or practices. R v Joey Saunders  EWCA Crim 264 was a rape case where the appellant and victim were students at university. After a night of drinking and dancing at their student union, the appellant invited the victim to his room. The victim made it clear that she did not want to have sex beforehand, largely because she had strict religious beliefs pertaining to the preservation of her virginity.
Holroyde LJ found that in the circumstances of this case the victim’s social and religious background made the loss of her virginity a particularly harmful blow. He stated:
“The inclusion of harm factor allows the sentencer to take into account a range of features which may increase the harm which the offence caused, was intended to cause or might foreseeably have caused to the victim. Often the relevant circumstances will be those which substantially limit or exclude the victim’s ability to avoid, protest against or report the offence. This may be the case where, for example, a victim is very young or insensible through drink. But personal circumstances may also render a victim particularly vulnerable to even greater harm than is likely to be suffered by other victims of a similar offence. A victim may, for example, have mental health problems which are greatly exacerbated by the effects of the offence. Similarly, a victim’s religious and/or social circumstances may be such that being the victim of a sexual offence strikes at her faith and/or results in the condemnation by her peers” [para. 13].
Whilst Holroyde LJ advises that due weight must be given to the words “particularly vulnerable”, and warns against double counting, the dangers of this approach are clear.
Sentencing Judges are therefore being asked to look carefully at the particular circumstances of each case and ask themselves whether a factor or combination of factors relating either to the personal characteristics of the victim, their living/domestic relationships, their relationship to the offender, the nature and duration of the offending behaviour, or indeed any other “permutation which may raise” may have the capacity to render them particularly vulnerable according to the guidelines. This gives rise to a potentially infinite range of factors/circumstances which a sentencing judge could take into account, arguably far beyond anything envisaged by those who coined the phrase “particularly vulnerable” when drafting the guidelines.
The phrase “particularly vulnerable” is clearly designed to denote an enhanced degree of vulnerability outside of the normal range of vulnerability pertaining to your “average” victim – some special, distinct, unusual, particular feature about that victim or those circumstances that properly elevate the level of harm so as to significantly increase any sentence imposed. No argument can sensibly be had with this if a victim suffers from a particular disability, is extremely young or extremely old or is completely unconscious/incapacitated at the time of the commission of the offence and therefore unable to defend themselves or get help. Perhaps the Courts have also been right to recognise that a range of factors (familial relationship/youth/grooming/duration) can combine so as to render a victim “particularly vulnerable”, although arguably all of those factors could properly be treated as significantly aggravating features or used as a basis to take the offence outside of the Guidelines so as to reach an appropriate sentence, as opposed to stretching the concept of particular vulnerability too far.
However, when any number or nature of personal characteristics/circumstances can come into play, it is hard to see how almost any victim could not, in one way or another, be brought within the category of particular vulnerability. After all, who then is the victim who is only “merely” or “ordinarily” vulnerable? Which victim doesn’t have something particular about them or their circumstances which could be used to justify a finding of particular vulnerability? What is the yardstick by which we separate “particular” vulnerability from the common-garden variety?
The effect upon those who come to be sentenced – possibly erroneously – on the basis of a finding of Category 2 Harm may be deemed particularly harsh when one considers that, because this exercise is concerned with harm rather than culpability – and “we must take our victims as we find them” – a sentence can be significantly increased due to factors which may be (and often are) completely outside of the intention, contemplation or knowledge of the offender.
It seems to us that sentencing judges need robust guidance that a finding of Category 2 Harm should only be justified on the basis of “particular vulnerability” with a strong warning against the dangers of applying that term too liberally. Whilst each case must turn on its own facts, and it may be there is no strict definition of factors or circumstances which can rise to “particular vulnerability”, such a finding must be based on significantly more than individual vulnerabilities or circumstances which do not, in truth, justify a finding of greater harm. Or rather it should be recognised that all offending causes harm which can often not be quantified as between different individuals and in only those most clear-cut of cases should higher sentencing follow as a result. In particular, Courts should be wary of taking account of personal characteristics pertaining to a victim over and above a recognised disability. Otherwise, the list of factor becomes endless and the notion of what is “particular” in any case diminishes to a vanishing point.