When Rape Isn't Rape: Court of Appeal Sentencing Practice in Cases of Marital and Relationship Rape

Abstract

This article focuses on Court of Appeal sentencing practice in cases of marital and relationship rape. In particular, it examines the sentencing principle set out in the case of Berry in which it was stated that cases of marital and relationship rape sometimes involve less 'violation' and 'defilement' than cases of stranger rape and consequently are given reduced sentences. This article argues against such an approach on the basis that it is poorly reasoned and lacks support from the research literature on rape trauma. In addition, a statistical analysis of Court of Appeal sentencing appeals indicates that the Berry principle is seriously undermining the Billam sentencing guidelines for rape. An analysis of appellate decisions in the USA indicates a very different attitude to the seriousness of marital and relationship rape based upon a willingness of the appellate judges to utilize research evidence in their decisions.