Area of Law – Sentencing

An Article about Sentencing women in sexual criminal cases

SENTENCING – Females and equality
Everyone is equal before the law. Unfortunately that includes when they are being sentenced as well. The Courts try to avoid showing any leniency based on the gender of offenders.

Some case law on this issue;

The need to treat male and female offenders equally is not limited to sexual offences. In R. v. Harkness and Ors two young women, Densley and Rye, assisted their male co-offenders to traffic in heroin. They were given very lenient sentences. The principle of parity almost required appellate intervention in favour of the co-offenders. I said, with the concurrence of Winneke, A.C.J.:

“The approach of the courts to sentencing female offenders has changed over the years in reflection of the community’s views. The principle at stake is equality. The law cannot, and should not, be blind to human nature or to the vulnerability of persons in the position of Densley and Rye and there are other differences between male and female offenders that can legitimately affect the sentencing discretion, but it is no longer acceptable that an offender be given a different sentence solely because of his or her sex.”

As that passage shows, differences between offenders that are not solely because of their sex may, and where they are relevant should, be taken into account. The law does not require an artificial transposition, treating men as if they were women or women as if they were men. It is not fallacious to detect error in the present sentence because it is completely different from the sentence that would have been imposed on a male offender. It would be an error simply to substitute, after allowance for double jeopardy, the sentence that would have been imposed on a male schoolteacher who had taken part in six acts of sexual penetration with a female student. We must not replace one set of unjust stereotypes by another that is no less unjust.

DPP v Ellis [2005] VSCA 105 (5 May 2005)

This was the case of the female school teacher who had sex with her student and was put in prison.


Date: 09/01/2009