When is sleep a vulnerability?
In The Unbearable Lightness of Being, Milan Kundera wrote that “making love with a woman and sleeping with a woman are two separate passions, not merely different but opposite.” In that passage he was talking of a conscious decision on the part of both parties and the different feelings evoked by the former, but I was reminded of it by several recent decisions involving victims who were asleep or who were believed by the defendant to have been asleep during sexual offending.
The first was R v BN (2021) EWCA Crim 1250 where D was convicted of four offences of sexual assault of a child under 13, the victims being his two stepdaughters. He was sentenced to concurrent terms of 12 months’ imprisonment on each, a sentence referred by the Solicitor General as being unduly lenient.
The offending took place on two occasions after the two children had gone to bed. On each occasion child (A) had been asleep but was woken by D touching her while child (B) had been awake when D came into the bedroom. Sentencing him, the judge determined that the offences were 3A with a starting point of a year’s custody and a range of 26 weeks to two years. The aggravating factors were identified as being a breach of trust and the fact that the offending took place “whilst they were in the privacy of a bed, asleep or half asleep.”
On behalf of the Solicitor General, it was said that the judge had failed to properly reflect the seriousness of the offending. In particular, it was submitted that child A was “particularly vulnerable” and that the offending in respect of her should have been placed into category 2A with a starting point of four years’ custody and a range of three to seven years. Interestingly, given that this was a reference, it was also submitted that the offences against child B had also been wrongly categorised, but that the offending against her should have been assessed as 3B rather than 3A.
The Court accepted that when the offending against the first child began, she was asleep and thus was “particularly vulnerable due to her personal circumstances.” They were referred to R v Rak (2016) EWCA Crim 882 in which it was held that personal circumstances need not be enduring and to R v Bunyan (2017) EWCA Crim 872, R v Sepulvida-Gomez (2020) 4 WLR 11 and R v Behdarvani-Aidi (2021) EWCA Crim 582 where an adult victim was found to be particularly vulnerable due to personal circumstances, as a result of her being asleep and intoxicated.
The Court found 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 to protest, could generally be anything other than particularly vulnerable due to their personal circumstances.”
That meant, that the offences against child A were Category 2A albeit noting (rather pointlessly given the facts) that but for the fact that she was asleep, all of the offences would have fallen into Category 3. They then identified the aggravating factors as; the fact that there were two victims, that each was aware of the offending of the other, the offences were committed in the presence of other children and the fact that D was heavily intoxicated. Of particular assistance to practitioners given its ubiquity, in addition to the usual mitigating factors, the court were also concerned about the lengthy and unexplained delay in charging. That led them to reduce the sentence from what it would otherwise have been and to substitute sentences of 2½ years for each count against child A.
The issue again raised its head in R v AWA (2021) EWCA Crim 1877 another reference, this time in respect of a sentence of three years ten months’ imprisonment following guilty pleas to a number of offences including rape.
In this case, the victim and D had been in a relationship for two years and text messages between them revealed that she disliked the fact that D would “jump on her” rather than take his time during sex, but that when he took Viagra he took too long and made her sore.
The incident that formed the rape took place after a consensual threesome with another man, during which the two men took cocaine and all three took prescription drugs and alcohol. After they fell asleep, D awoke, filmed the victim sleeping on his phone and then proceeded to film himself having sex with her. The recording showed that although she was asleep when he first penetrated her, she woke up after about 2½ minutes and told him to stop. It also showed that other than refusing to stop and ejaculating within seconds thereafter, the incident was calm, the victim was described as being tender towards D and they both then went back to sleep.
The plea to the rape was entered shortly before trial and was assessed as being a 3B offence with a starting point of five years. Had it been a trial the judge determined that the sentence would have been four years, a term which was reduced to three years ten months to reflect the fact that V had not had to give evidence.
It was submitted on behalf of the Solicitor General that the rape should have been a 2A offence with a starting point of ten years to reflect the fact that the victim was particularly vulnerable as she was under the influence of drugs and asleep. That starting point was aggravated by the fact that the offence was recorded (something that all in the lower court did not rely on as an aggravating factor because they regularly recorded their sexual encounters), an abuse of trust, ejaculation, and his previous convictions, albeit none were for sexual offences.
The Court noted that no one in the Crown Court had suggested that the case was Category A harm nor that it came within Category 2. They accepted as in R v Behdarvani-Aidi that there are cases where extreme drunkenness or sleep can amount to a vulnerability, particularly where the parties are strangers, or the victim is somewhere unfamiliar. They did not however, accept that whenever a victim of rape is asleep, it automatically follows that he or she is particularly vulnerable stating that whether they are depends on the circumstances.
In this case, they pointed to the fact that it was unknown whether she was still under the influence of drugs that she had taken hours earlier, that she was in a flat with people she knew and with whom she had engaged in sexual relations over a prolonged period, that she was woken by D and she told him to stop. They also agreed that the recording, in the circumstances of this case was not an aggravating factor, that the alcohol and drugs had been taken to improve the earlier sexual experience and not for the purpose of the offence and that ejaculation did not aggravate the offence.
Concluding that the sentence was not unduly lenient the Court also took the opportunity to state that the approach to sentence by the Solicitor General was ‘somewhat mechanical and failed to reflect the reality which was shown in the digital recording and in the account of the whole of the circumstances…. had that been done a decision could properly have been taken not to seek a referral.”
So, having considered situations where a child and an adult were awoken by the offending, in a third reference, R v Matthew Robert Husband (2021) EWCA Crim 1240 the Court had to consider the position where the victim was awake but pretended to be asleep and D believed that she was asleep.
D was convicted of the rape and assault by penetration of an extended family member who had communication difficulties and displayed some signs of Autistic Spectrum Disorder. On the night of the offending both D and the victim had been drinking and in fact she had consumed so much alcohol that she vomited. However, there was no suggestion that D deliberately got her drunk. Afterwards, she lay on the sofa where D carried out the offences before carrying her to bed, he having believed her to have been asleep throughout.
He was convicted after trial and sentenced to 6½ years for the offence of rape and three years concurrent in respect of the assault by penetration, both counsel submitting that the offences fell within category 3A. The Solicitor General submitted that that assessment was wrong and that the offences involved category 2 harm on the basis that she was particularly vulnerable as a result of her age, intoxication, and the fact that she was sleepy. Alternatively, if the Court did not accept the categorisation, it was submitted that the judge had failed to give sufficient weight to the fact that she was vulnerable due to her intoxication and tiredness, that D believed her to be asleep, that she was young with a significant disparity in age between her and D and that D had been under the influence of alcohol.
The Court, as it had in BN, accepted that a victim of a sexual offence, who is asleep when the sexual activity begins, is particularly vulnerable because they do not know what is happening, are unable to protest and may not be able to report what has happened after the offence. They confirmed that was also the case if someone was asleep or intoxicated, noting that the level of intoxication may affect how quickly someone wakes up. They also accepted that a combination of factors may mean that a victim is particularly vulnerable due to her personal circumstances. However, they were not persuaded that the only conclusion, properly available to the sentencing judge, was that the victim was particularly vulnerable. She wasn’t asleep, nor was she so drunk that she didn’t know what was happening and whilst D could not have argued had the judge found that the combination of factors led the judge to that conclusion, he hadn’t been bound to do so.
Having rejected the primary submission the Court went on to accept the second, namely that the judge had failed to adjust the starting point to reflect the overall seriousness of the offending. They held that the four factors identified by the Solicitor General were significant aggravating factors, which the judge failed to reflect and that the sentence in respect of the rape offence should have been eight years’ imprisonment.
The message from all three cases, is as it so often is, that you have to look at the circumstances of each case to ascertain whether a victim is actually particularly vulnerable. If the prosecution wants to submit that he or she is, unless the victim is a child and is at least asleep at the start of the offending, they will need to point to factors that can be combined to enable the judge to properly reach that conclusion. Similarly, in arguing against that proposition, the defence will have to point to factors such as those in AWA which show that while he or she may at first blush be particularly vulnerable, when looked at against the reality of the relationship or circumstances that vulnerability falls away.