Girls and women should not be the collateral damage for someone else’s right to a second chance

In what sense can Scotland claim to be the best place for a child to grow up in when a rapist gets handed a 270-hour community service order for raping a 13-year-old girl? 

That in a country where the all-consuming rhetoric around tackling violence against women and girls is held up as something of a defining mission, yet the future prospects of a child rapist are held more dear than the broken childhood of a vulnerable teen whose body he so brutally violated.

And notwithstanding the fact that it took four years to bring this horrific case to court – the reasons for which deserve their own close examination – it remains an abhorrent absurdity in 21st century Scotland that a rapist escapes jail because at 21 he is considered too young for the punishment, but not for the crime.

Sean Hogg was 17 when he sexually assaulted the 13-year-old girl on various occasions in a park in Dalkeith in 2018. The brutal details of what he did to her don’t need repeating, but at the High Court in Glasgow last week, the judge, Lord Lake, told Hogg rape was “one of the most serious crimes” and noted the effect on his victim was likely to be “marked and long-lasting”.

But he went on to say that the rapist’s age was also an “important factor”. He pointed out that it had taken four years for the case to come to court and said he had sentenced Hogg as if he had still been a teenager, when he would have been considered “less culpable, less blameworthy” of the crime. He said that had Hogg been just a few years older, he would have received a prison sentence of four to five years.

However, he concluded that incarceration was not now appropriate, adding: “Prison does not lead me to believe this will contribute to your rehabilitation.” And with that he handed Hogg a community payback order. 

Freedom from prison, unpaid community work, and a period on the sex offenders’ register. Outrage doesn’t begin to cover it. 

This case is one of the starkest examples yet of the Scottish courts’ new approach to dealing with offenders aged under 25. New guidelines were introduced in January last year which make rehabilitation rather than punishment a primary consideration when sentencing.

At the time, the Scottish Sentencing Council (SSC), which was established by the SNP government in 2015, said the guidelines were based on “compelling scientific evidence on the development of cognitive maturity.”

It said someone under the age of 25 would “generally have a lower level of maturity, and a greater capacity for change and rehabilitation, than an older person”.

Many responses to the public consultation are rooted in an inherent understanding of the damage of Adverse Childhood Experiences (ACEs) and how they have negatively contributed to shaping an offender’s behaviour.

And while the SSC is independent of government, the then justice secretary, Keith Brown, offered his wholehearted backing, saying the guidelines complemented the SNP’s “vision for youth justice”.

He rejected claims that they amounted to “soft justice”, instead describing the overhaul as “smart” and promising Scottish Government help to “make sure it is adopted”.

Rape is the grinding fear that dictates how women navigate the world. It’s omnipresent. It’s how our days and our nights are shaped. It dictates a dress code. Our socialising is organised around it.

And our relationships are forged in an understanding of the risks of it. And while I accept that not all men are rapists, all rapists are men.

Young girls and women should not be the collateral damage for someone else’s right to a first or even second chance. Where were the rights of that 13-year-old not to be raped?

And it is men who will never fully understand the all-encompassing control that the threat of sexual violence has on women or what that constant state of hypervigilance does to us. It’s like a baked-in PTSD. It’s an exhausting way to live and this sentence makes a mockery of our fear.

And while perhaps this particular case is just a one-off, an unwelcome and unintended consequence of a more compassionate approach to crime, or even the actions of a maverick judge, regardless, the consequences are chilling.

As J.K. Rowling said on social media, it sends a message out to all young men that their “first time’s free”.

I’ve worked long enough in and around the criminal justice system to know there are no perfect answers when it comes to crime and punishment, but equally there are some crimes, like rape, that strike at the very heart of who we are.

They are indicative of a fundamental, animalistic disregard for the social bonds of our human relationships, and go way beyond any attempts at a justification for what shaped an offender’s behaviour. There is no ‘why’, no mitigation, to account for that kind of violation.

I was the first journalist to be allowed into the pioneering sex offenders’ unit at Peterhead prison in the early 1990s. I spent time trying to understand paedophiles, rapists, and serious sex offenders. I understood the desire to seek answers, to find ways for rehabilitation of these flawed and dangerous individuals, because the alternative is unthinkable – that we just live with the fear of their reoffending.

So, I get that we need to focus on rehabilitation. I understand the childhood trauma that may lie behind a perpetrator’s heinous crimes. I accept the science that tells us brain development doesn’t reach maturity until after the age of 25 – although we seem to give that scant regard when being told children of 16 can vote, should be able to stand for parliament, and can change their legal sex by simple declaration – but young girls and women should not be the collateral damage for someone else’s right to a first or even second chance. Where were the rights of that 13-year-old not to be raped?

Ironically in recent months, it has been rapists who have bookended the departure of one first minister and the installation of another. It is rapists who have held a mirror to just how progressive our approach to justice really is in the context of the safety of women and girls. And it has been found wanting.