Sentencing Rape - A Comparative Analysis by Dr Graeme Brown

AuthorJohn Edwards
PositionSenior Ordinary Judge, Court of Appeal
[2020] Irish Judicial Studies Journal Vol 4(2)
Graeme Brown, Sentencing Rape - A Comparative Analysis
(Hart Publishing 2020), ISBN 9781509917570
Mr Justice John Edwards, Senior Ordinary Judge, Court of Appeal
Sentencing Rape A Comparative Analysis by Dr Graeme Brown was published by Hart
Publishing on the 14th of May 2020.
Given the quality and scholarship of that author’s earlier
major publication,
I had high expectations for this latest piece of work and was not
In this, his latest monograph, Dr Brown considers a variety of differing approaches towards
structuring judicial discretion in sentencing rape. As to the value of such a study, he explains
in his introduction, citing Freiberg,
that most countries tend to be ‘juricentric’ in their
sentencing practices and their criminal justice systems ‘solipsistic’, and by way of example
alludes to criticisms levelled at the Court of Appeal (Criminal Division) in England and Wales
for its apparent unwillingness to consider the sentencing jurisprudence of other jurisdictions
in the course of its judgments,
and, more generally, for its refusal to engage with academic
Lamenting this, he maintains that sentencing is one area of law and social policy
that lends itself particularly well to comparative treatment.
He acknowledges that
comparative scholarship is not always easy in the light of cultural variability in ideas and
values, and system difference, but believes that such concerns do not feature to any great
extent in a comparative study of sentencing practice for rape.
Rape is a universal crime, and
Dr Brown has proceeded on the premise that within common law jurisdictions there is a
high degree of what Nelken has termed ‘functional equivalence’ regarding the seriousness
with which the courts view, or purport to view, the offence of rape.
His book, therefore,
compares rape sentencing across several common law jurisdictions, chosen for having similar
sentencing traditions and, broadly, similar legal cultures, including England and Wales,
Scotland, the Republic of Ireland, New Zealand, and South Africa. For some reason , the
Graeme Brown, Sentencing Rape - A Comparative Analysis (Oxford, Hart Publishing 2020).
Graeme Brown, Criminal Sentencing as Practical Wisdom (Oxford, Hart Publishing 201 7).
Arie Freiberg ‘What’s it Worth? A Cross-Jurisdictional Comparison of Sentence Severity’ in Cyrus Tata and
Neil Hutton (eds), Sentencing and Society International Perspectives (Aldershot, Ashgate 2002). 237.
Graeme Brown, ‘Sentence Discounting in England and Scotland – Some Observa tions on the Use of
Comparative Authority in Sentence Appeals’ 2013 (8) Criminal Law Review 674.
Andrew Ashworth, ‘Why Sentencing Matters’ (Roger Hood Annual Public Lecture Series, University of
Oxford, 23 May 2013). Podcast available at <> accessed 24
September 2020.
Graeme Brown (n 1) 3, citing Tom O’Malley, ‘Principles of Sentencing: Towards a European Conversation’
(Leiden University, Leiden, 23 January 2008). See also Markus D. Dubber, ‘Comparative Criminal Law’ in
Mathias Reimann and Reinhard Zimmerman (eds), The Oxford Handbook of Comparative Law (New York, Oxford
University Press 2006) 1309; Michae l Tonry, ‘Foreward’ in Cyrus Tata and Neil Hutton (eds), S entencing and
Society International Perspectives (Aldershot, Ashgate 2002) xxvii; Julian V. Roberts, ‘The Evolution of Sentencing
Guidelines in Minnesota and England and Wales’ (2019) 48(1) Crime and Justice 231.
Graeme Brown, (n 1) 4 citing Malcom Davies, Pekka Takala, and Jane Tyrer, ‘Sentencing Burglars in England
and Finland’ in Cyrus Tata, and Neil Hutton, (eds), Sentencing and Society International Perspectives (Alder shot,
Ashgate 2002) 273; and David Nelken, ‘Comparing Criminal Justice’ in Mike Maguire, Rod Morgan, Robert
and Reiner (eds) The Oxford Handbook of Criminology (6th edn, Oxford, Oxford University Press 2012) 141.
Graeme Brown (n 1) 4, citing David Nelken (n 7) and also David Nelken ‘Comparative Sociology of Law’ in
Reza Banakar, and Max Travers (eds), An Introduction to Law and Social Theory (Oxford , Hart Publishing 2002).

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