A very interesting, but highly contentious, issue reared its ugly head yesterday as Rolf Harris was convicted of 12 counts of indecent assault.
What’s extremely contentious about the outcome is that he was charged under the sexual offences Act of 1956, because the offences happened at a time of old legislation. Basically, if he’d have done the same things now he would have received a heftier sentence, because cultural evolution has shifted people’s perspective and tolerance on crimes like paedophilia, with penalties now being severer.
Having had a night’s sleep on this, I don’t think it’s right that someone should receive a shorter sentence that has been matched to the legislative time of the crime(s). It seems clear to me that past crimes should be penalised according to the present legislation (and I mean this generally speaking, not just taking into account Rolf Harris’s situation).
Given that legislative measures and acts of jurisprudence are built on a cultural evolution of the increased wisdom and revisions of human beings over time, I’m of the view that sentencing for any crime should be administered according to the legislation of the time of the trial, not the offence – otherwise it rather undermines the perceived wisdom that went into the revision processes of jurisprudence over time.
My friend Mark made an interesting point; he warned that it could set a dangerous precedent. He says: “If we raised the age of consent to 18 we could then punish all those who had sex at 16″. My friend Jacqui added a terrific point which illustrates a thin end of the edge-type of caveat. She says: “We had Hanging back in the early 60s, so if somebody was now found guilty of murder back in 1960 do we get to hang them?”.
Quite! Apart from a difference in scale of penalty, the legislators at the Rolf Harris trial agreed with this action *in principle*, just not in practice. They were willing to penalise in accordance with past legislation – but only if it was the right kind of past of legislation (I’m certain that if tomorrow they had a trial in which a man was found guilty of committing murder in 1959 they would not sentence him to hanging).
The thing about Mark and Jacqui’s points, though, is that two different things are being conflated. Mark makes his point in relation to a change of law, whereas Jacqui makes her point in relation to a change of perception of appropriate sentencing.
The Rolf Harris incident should be assessed under the terms of Jacqui’s analogy because the Rolf Harris legislative issue is not to do with a change of law (his crimes were still illegal in the sixties) but a change in the perception of appropriate sentencing. The key difference is that if we raised the age of consent to 18 we could not reasonably punish all those who had sex at 16, because they were doing so at the time from within the orbit of the law. Conversely, in terms of jurisprudence, murderers that were hung in the 1950s differ from murderers now only to the extent that punitive measures differed – the act of murder was still against the law.
Hence, in conclusion, if revision of jurisprudence is to avoid being undermined, people should be convicted and sentenced under the (present) legislation at the time of their trial, not under the legislation of the time of their crimes, as Rolf Harris was.