The media worldwide has responded with outrage to the “Stanford sexual assault case”. For those unfamiliar with the facts, the defendant Brock Turner was, at the time of the assault, a 20-year-old Stanford University student and star athlete on the university swimming team. Mr Turner and the victim had both been at a party, and were both intoxicated. Mr Turner was arrested after two graduate students saw him lying on top of the motionless victim behind a dumpster, and intervened. Officers described her as “completely unresponsive” and partially clothed when they attended the scene. The victim reported no memory of the sexual encounter, and only regained consciousness hours later in hospital.

Mr Turner contested the charges on the basis that the encounter had been consensual. However, in March 2016, he was convicted by a jury of all three charges he faced; assault with intent to commit rape of an intoxicated woman, sexually penetrating an intoxicated person with a foreign object, and sexually penetrating an unconscious person with a foreign object.

The sentencing judge sentenced Mr Turner to six months’ imprisonment in county jail, and three years probation. Much has been made in the press as to whether this was an unfairly lenient sentence, a question which relies on consideration of American criminal law and procedure. The more interesting question for lawyers on this side of the Atlantic is what sentence Mr Turner might have received had he been convicted of a similar offence on a UK university campus.

Sexual offences in England and Wales do not mirror their American counterparts exactly. From the facts as reported, we can deduce that the allegation was one of non-consensual sexual penetration, but not rape. As a result, the most appropriate charge under English criminal law is likely to have been “assault by penetration” contrary to s2 Sexual Offences Act 2003. The maximum sentence available for this crime is life imprisonment (the same as a rape conviction, and more than that for the charges Mr Turner faced).

Sentencing for sexual offences in the UK is decided by reference to the Sentencing Council’s Definitive Guideline for Sexual Offences1. This sorts offences into different brackets of seriousness. The categories are determined by reference to a specified list of factors relevant to (a) harm and (b) culpability.

In the case of Mr Turner, relevant harm factors from the guidelines would arguably be the severe psychological harm caused to the victim (her harrowing victim impact letter, first published on Buzzfeed News2, has since gone viral) and that the victim was particularly vulnerable due to her personal circumstances (unconsciousness being a clear indicator of extreme vulnerability). This would put the assault in either Category 1 or Category 2 for harm, depending on the judge’s view of how extreme these factors were. Given the absence in this case of some of the most severe indicators of harm, such as abduction or severe violence, this would most likely be a Category 2. On the question of culpability, none of the features that the guidelines specify would push the case into Category A (such as significant planning or previous violence against the victim) apply. This would put the assault into Category B for culpability.

The guidelines suggest that a Category 2B case of assault by penetration should have a sentencing “starting point” of six years’ imprisonment. Interestingly, this is precisely the sentence that American prosecutors sought in Mr Turner’s case. The sentencing range available to English judges for offences in this bracket is from four to nine years’ imprisonment – significantly more than the six months incarceration imposed in this case. Indeed, for an English defendant to receive a sentence of less than two years for an offence of assault by penetration, the case would need to be argued into the lowest possible category within the sentencing guidelines with no aggravating features. This would be an ambitious task for even the most committed defence lawyer.

In Mr Turner’s case, a number of features apparently weighed particularly heavily in the judge’s sentencing decision, his full reasoning having since been published3. These factors comprised primarily of the defendant’s youth, his good character (including numerous character letters attesting to this), the severe impact that the conviction would have on his life in any event, the severe impact of a prison sentence on him, and what the judge deemed to be genuine remorse. The vast majority of these are also specifically listed as mitigating factors in the Sentencing Council’s Guidelines, and would have been taken into consideration had this offence occurred in England.

Many critics of the sentencing judge’s decision in this case have suggested that the factors he gave weight to are all ones which arise from Mr Turner’s privileged upbringing and life circumstances. It is certainly true that if the defendant had been someone with few employment prospects, and a less than stellar academic history, many of the judge’s considerations would have had no relevance. The conundrum of how to sentence privileged defendants is one which applies equally in the English criminal courts. It is powerful mitigation to demonstrate the devastating effect that a conviction will have on those who, for example, work in regulated professions. For such individuals the ramifications of a criminal record may outweigh any additional damage caused by a lengthy prison sentence. Similarly, if a defendant has, prior to their offending, been a positive contributor to society, many judges will want to leave open the prospect that they could be one again, a possibility that may well be destroyed by a very lengthy prison sentence. All of these considerations together militate towards a more lenient sentencing decision.

So what sentence would Brock Turner have received in England? It is hard to see any Crown Court judge imposing a sentence of less than two years (the threshold below which it could be suspended) in a case with these facts. However, with a good defence team presenting cogent evidence as to the unusually detrimental impact of the conviction, as Mr Turner’s American lawyers did in this case, a sentence of substantially less than the six year starting point indicated in the guidelines would have been highly likely.