A FEW years ago The Herald’s Victoria Weldon was scrolling through figures on crime and punishment when a number caught her eye. Somebody, the figures revealed, had been convicted of rape but had not gone to jail. Her curiosity was piqued. So she made some calls. The case, as she had suspected, was messy; far too complex to reflect in a meaningful way in a news story. There was certainly no scandal so she let the matter lie.
This, I would like to think, is what responsible journalists do: ask questions about the things we, and no doubt many of our readers, don’t quite understand. Sometimes this results in stories; sometimes it does not.
I think my colleague showed judgment. Regrettably, I also think one or two politicians have since failed to do so on the very same issue. Let me explain. Last month a newspaper revealed, perfectly accurately, that, in the year 2014-2015, there were six rape or attempted rape convictions that had ended in a non-custodial disposal called a community payback order, or CPO. Cue horror. “Beasts”, screamed the tabloids, were escaping jail and picking up litter instead.
The justice spokesman for the Conservatives, a freshly elected MSP called Douglas Ross, said the cases showed the ruling SNP was “soft on crime”. His leader, Ruth Davidson, even raised the matter at First Minister’s Questions. Nicola Sturgeon ended up telling Holyrood that rape was “heinous”, as if anybody could ever disagree.
Then Scotland’s new chief constable, Phil Gormley, said he could understand why sometimes there might be a community sentence for a rape. There are cases, he explained, “where we have to be sensitive and intelligent”. That provoked even more outrage. Mr Ross declared that it was “impossible to imagine a scenario” when a rapist did not deserve jail. I was not impressed. In my view, he did not need to “imagine” anything: he just needed to ask questions about a subject with which he was not familiar. He did not; I did.
Why do courts, rarely, decide not to put “convicted rapists” behind bars, I asked contacts in the justice system. They replied that the world and the law were not as simple as political rhetoric. My sources then talked scenarios, some of which I have come across myself and all of which are horribly distressing.
I am going to cite just one. There is a teenager who has severe learning difficulties and who is being abused. He commits a sexual offence on someone with learning difficulties who cannot give consent. That is a rape, and has been since the law changed to widen the definition of the crime in 2009. Do you jail such a boy? Or have him pick up litter? Well, probably neither.
One senior justice insider, asked about rape CPOs, explained: “These perpetrators are not painting pensioners’ fences. They are children or other vulnerable people who are getting psychiatric or psychological help.”
Will courts sometimes make the wrong call? Possibly, though prosecutors have powers to appeal any sentence they feel is lenient. Is there any political meaning to be derived from such rare, complicated and upsetting cases? I don’t think so.