Douglas McConnell

The recent controversy over a Scottish Greens comments about rape has, rightly, caused distress. Victims’ organisations and politicians were right to challenge language that appeared to minimise sexual violence. Rape is not on a spectrum; it is a profound violation,and public discussion of it demands nothing less than seriousness. On that, the MSP was wrong, and the backlash was justified.

But the comments came during a discussion about rehabilitating offenders, and buried in the obvious errors is a genuine point of discussion. I believe the spectrum the MSP should have described is not the offence, but the sentence that follows it, shaped by far more than the harm caused alone.

Once guilt is established, a judge is not simply measuring one victim’s suffering against a scale of punishment. They are weighing that harm alongside the offender’s history, age, risk of reoffending and prospects of rehabilitation, and the wider public interest in a system that attempts to reduce future harm. None of that means the victim’s harm is diminished. It means it is one part of a wider calculation.

Victims deserve compassion, clarity and a genuine voice, and Scotland has made progress on all three. But acknowledging other factors can shape sentences isn’t the same as downgrading what a victim has suffered. A firsttime offender with genuine prospects of rehabilitation is not in the same position as someone with along history of similar offending, even where the harm to each victim looks the same. That distinction exists precisely because the public interest is thought to be served by a system that punishes fairly and reduces future harm, not one that treats every case identically regardless of who is in the dock.

I once acted in two cases that were, on paper, nearly identical: same charge, similar evidence, comparable harm. What differed was not the harm, but what each victim wanted to happen next. One was determined to see the harshest sentence possible. The other spoke of forgiveness and wrote to the court for leniency. Should the two accused have received different sentences simply because their victims wanted different outcomes? Sentencing has to reflect the harm caused, the offender’s circumstances, and the public interest, not one at the expense of the others.

Even government policy accepts this. The sentencing framework for offenders under 25 requires courts to weigh rehabilitation prospects and neurodevelopment more heavily, regardless of how a victim feels. The harm caused doesn’t shrink because the offenderwas 24 rather than 25. Yet the law draws that line because younger offenders respond differently to intervention.

Which brings us back to where this started. The MSP was wrong to describe rape itself as a spectrum. The offence is fixed, and only the sentence that follows is genuinely variable. but that is exactly why the balance between harm, circumstance and public interest needs honest discussion. This is not because rape is ambiguous, but because what happens to the person who committed it rarely has a single right answer.

Scotland will never build a sentencing system that satisfies everyone. What it can build is one that talks about that balance, explains its reasoning, and treats nuance not as weakness, but as proof that it is grappling honestly with something genuinely hard.

Douglas McConnell is director at Duncan & McConnell solicitors in Dundee

This article first appeared in The Scotsman.