Russell Brand’s prison sentence and the many elements of criminal justice

The British entertainer’s sentence for rape and sexual assault punishes crimes against four women. It also raises a wider question about what courts can do to deter offending, recognise harm and protect the public.

A jury decided what Russell Brand had done. A judge then had to decide what the law should do about it.

On Monday in London, Southwark Crown Court sentenced Brand to 10 years and six months in prison. A jury had found him guilty of one count of rape and three counts of sexual assault against four women between 2004 and 2009. Brand had pleaded not guilty. The jury acquitted him of two further counts of rape and one count of attempted indecent assault.

The prison term made the headlines. But the sentencing hearing also gave the four women a chance to tell the court, in their own words, how the crimes had affected their lives. Their statements put nearly two decades of consequences alongside the number the public would hear that day.

Sentencing is the Swiss Army knife of criminal law. A court can use it to punish, deter, protect the public and promote rehabilitation. It can also condemn the conduct and formally recognise the harm. Those purposes overlap, and they can pull in different directions. The judge’s job is to weigh them in light of the offences the jury found proved.

Punishment and the place of retribution

Prison takes away liberty. That is the punishment, and its severity should reflect the gravity of the crimes. In Brand’s case, the court was sentencing four offences against four women. Judge Joel Bennathan also spoke about the role of Brand’s celebrity, including his exploitation of a fan’s admiration and his apparent belief that fame let him behave as he pleased.

Retribution is the principle that someone who commits a serious wrong deserves a proportionate penalty. The state takes responsibility for imposing it under law. For the women in this case, a distinct part of justice was the opportunity to have the consequences of the crimes heard in open court. A victim impact statement helps the judge understand what the offence meant in a person’s life, including effects that can continue long after the day of the attack.

Deterrence and the warning to others

Courts distinguish between discouraging the individual offender from doing it again and discouraging others from committing similar offences. The second is called general deterrence. In a case this public, the warning reaches well beyond the defendant. Anyone who assumes that fame, professional standing or the passage of years will shield them from accountability has reason to reconsider.

Brand’s sentence is a public example. The term itself does not establish a binding tariff for future cases. Courts must still sentence on the facts and law that apply to each offender and each offence.

There is also a limit to what a long sentence can do as a warning. Research on deterrence generally finds that the perceived likelihood of being caught matters more than the severity of the penalty. That gives weight to what happens well before a judge takes the bench. Whether someone can report an assault safely, whether investigators take it seriously and whether they can gather evidence all matter to the credibility of the warning.

Protecting the public during prison and after it

Custody protects the public by restricting an offender’s liberty. The question of protection continues after release. Reuters reported that Brand is due to serve two-thirds of his sentence in custody before release on licence, when he remains subject to conditions. The Metropolitan Police said he would be subject to sex offender notification requirements for life.

Rehabilitation serves the same aim over a longer horizon. A prison term restricts what an offender can do today. Rehabilitation seeks to reduce the risk of further offending when the person returns to the community. That is why the law of England and Wales lists rehabilitation alongside punishment, crime reduction, public protection and reparation.

A personal crime and a public wrong

Rape and sexual assault violate a person’s bodily autonomy. They also affect the conditions in which other people go to work, socialise and move through public life. When women have reason to believe that an influential person can ignore consent and face no consequences, the loss of trust extends beyond any one case. That is the public dimension of an intensely personal crime.

Australian readers can see that distinction in NSW sentencing law, which expressly recognises harm to both the victim and the community. It also gives courts a role in denouncing the conduct. In plain terms, the court can say publicly what was wrong and why it warrants punishment. At Brand’s sentencing, Judge Bennathan made the point in terms anyone could understand. What a woman wears, where she goes and what she drinks do not diminish her right to refuse.

The Times View

Brand’s sentence gives the public a number. The four women’s statements give the court something the number alone cannot convey. Both belong in the account of what happened in London.

The warning to anyone who would rape or sexually assault a woman is that status offers no exemption from the law. How much force that warning carries will depend on what happens in cases that draw no cameras. A woman’s account must be taken seriously, investigators must be able to do their work, and where the evidence proves the crime, the court must impose a sentence that reflects the harm.