Anonymity for Rape Defendants? An Opportunity for Fairer Representation

In the UK at present, claimants of rape have the right to public anonymity, meaning that anybody who reveals the identity of a person who claims to be the victim of rape faces criminal prosecution.  This right of anonymity is not extended to defendants, despite the Government suggesting that it should be back in 2010.  Here, I examine the arguments for and against extending anonymity to those accused of rape, and conclude that this is something that should be implemented at the earliest opportunity.  Not only will extending this right be beneficial in terms of reducing the risk of life-ruining stigma for those who are later found to be innocent, but it will also enable those being released from prison to have an easier route back into the community, increase opportunities for reintegration, and facilitate long-term desistance from crime.

The media – especially the printed press – have a huge role to play in promoting an evidence-based criminal justice system

Current Legislation

Since 1976, people lodging complaints and accusations of rape have been granted anonymity.  Only in exceptional circumstances is this anonymity lifted – in cases whereby, for example, the accuser chooses to reveal their identity, or when a Court of Law decides that anonymity should not be granted for some reason or another.  The reasons for which a Court will allow the lifting of a person’s right to anonymity are that (a) the person is subject to accusations of perverting the course of justice (making false allegations with regards to their victimisation) or (b) restricting the scope of press reporting goes against what is in the public interest.

The right to anonymity means that those claiming to have been raped cannot be publicly named in the media – a right that lasts from the time of the initial complaint through to the complainant’s death.  This is said to be in place in order to protect victims of rape from the “extremely depressing, and even positively harmful” effects that public knowledge of victimisation could have (Home Office 1975).

Anonymity for Defendants?

The Fifth Report, collated by the Home Affairs Select Committee and published by the Home Office in June 2003, considered the extension of the right to anonymity to those accused of rape.  The report cited four reasons in favour of extending the right, and four arguments against.

The arguments for extending the right to anonymity were:

• Granting anonymity to one party (the claimant) rather than both creates an unequal balance of power in Court proceedings
• Being identified as being a potential rapist, even if later found to be innocent, has grave social consequences
• Being identified as accused of rape puts the accused in potential physical danger
• Anonymity for those accused of rape could lead to an increase in false allegations being made.

Whilst, at face value, these arguments make sense, it is the second point – referring to the social consequences of being labelled as a rapist – that is the main focus of this article.

In contrast the above arguments, the points raised against granting anonymity to those accused of rape included:

• Criminal justice proceedings should be open to public scrutiny
• Whilst there are public policy (e.g. mental health) consequences of revealing the identity of a potential victim of rape, these consequences do not apply to those accused of rape
• Those accused of rape should not be treated any differently than those accused of other crimes
• Granting anonymity to those accused could hamper police investigations when, for instance, an appeal for witnesses may be required

Again, these all seem to be valid reasons for not extending anonymity laws, especially given the attitudes of the general population about rape (and, indeed, sexual offenders as a whole).  However, it is dangerous to set public policy based on general public attitudes.  It is important that a sound evidence base is considered rather than reactionary initiatives be introduced in order to appease a punitive public population.

The Effects of Media (Mis)Representation

Several authors cite media reporting as a key factor in the formation and maintenance of public attitudes (Angermeyer and Schulze 2001; Dietrich et al 2006; Schlesinger and Tumber 1994).  Upon analysis of media reporting of crime, and sexual offences in particular, it is clear that what is reported does not accurately reflect the realities of criminal activity.

The most striking of these misrepresentations of crime is the issue of sexual offending, with a particular emphasis on sexual offending against children.

Don Grubin (1998) describes how approximately 80% of all sexually offences committed against children are perpetrated by somebody who is known to the victim – with the majority of offenders being relatives of the young person being victimised.  Additionally, a publication released by the NSPCC (2002) tells how around 40% of those who commit sexual offences against children are young people themselves – many being in mid-adolescence.  However, these are not trends that are accurately portrayed by media outlets reporting on crime.

The murder of Sarah Payne led to public outcry and the introduction of notification laws to allow parents to identify convicted child sex offenders living in their communities

It is suggested that the rights of victims with regard to anonymity, coupled with the absence of such rights for those accused of sexual crimes, are directly responsible for the bias is reporting strategies.  The public desire to have a name and face to blame for crimes such as sexual abuse – especially against children, as seen by the News of the World’s “name and shame” campaign.  This campaign, whereby alleged paedophiles’ photographs and names were printed by a leading national newspaper, led to a series of vigilante attacks and was bought to an end when people resembling those mentioned by the newspaper were physically attacked and victimised in their own homes.

The campaign was sparked by the murder of 8-year-old schoolgirl Sarah Payne by Roy Whiting – a man with previous convictions for sexually abusing children.  Subsequently, the Government implemented the Child Sex Offender Disclosure Scheme (colloquially named “Sarah’s Law”), whereby parents can request to have confidential access to information about child sex offenders living in their area.  Notification procedures such as these hamper rehabilitation efforts and reduce the opportunities for ex-offenders to reintegrate into local communities, as I have previously discussed.

The move to introduce Sarah’s Law was vigorously supported by the general public, who were pleased to finally be able to access information about paedophiles living near to their children.  However, in order to make a request to access records, parents needed to have some suspicions about a particular individual.  The nation’s criminal profile of a child sex offender, heavily influenced by skewed media reporting, is that of a strange looking, lonely man who lives at the end of the street.  In actual fact, it is often the person that you least expect who is the most danger – an uncle, step-father, brother or grandparent.

This skewing of public perceptions has a whole host of societal implications, not least that the amount of time that children spend playing outside – now deemed to be too unsafe for young people – has substantially reduced.  This has led to an over-reliance on gaming and televisual equipment for fun and entertainment, with a knock-on effect being an increase in the prevalence of childhood obesity and its associated health risks.

Towards a Fairer System

Bearing all of the above factors in mind – how do we begin to unpick current policy and recalibrate it into a fairer, more pragmatic system?

As human beings, we are naturally curious – sometimes too curious – and, as a result, can invade the privacy of others with devastating consequences.  What with the present strain on the financial and human resources in the health service, and the, at times, scandalous stigma attached to mental ill health, it is only right that we protect vulnerable people (such as alleged victims of sexual crime) from the prying eyes of a public that is hungry for scandal and gossip.

However, this does not mean that we should facilitate a blame culture.  What we should be doing is granting anonymity to those accused of sexual offences, too.  As set out previously, the Home Office has considered granting anonymity to those accused, but these considerations have only taken the period from complaint to conviction into account.

What is suggested is that anonymity should be granted for the whole life-span.  That is, from complaint, through Court proceedings, post-conviction and after release.  This right to anonymity, as is currently the case, would only apply to media reporting, as to make further restrictions would be to limit the extent to which justice could be seen to be done (allaying concern one of the Fifth Report on extending anonymity legislation, above).

Introducing a lifelong right to anonymity for those accused (and convicted) of sexual offences would aid the reintegration of ex-offenders into communities upon release from prison.  This is seen by many to be a key factor in the process of long-term desistance from crime and, therefore, facilitating reintegration contributes to many social and economic benefits – not least a reduced level of re-offending among ex-offenders.

In addition to contributing to the process of desistance, granting the right to anonymity to those accused and convicted of sexual offences could allow for a more realistic picture of crime to be portrayed by the media.  By not being able to identify either the accuser or the accused, the relationship between the two could be highlighted. After all, knowing that person X is the uncle of person Y does not compromise the identity of the victim, whereas saying Mr Smith is accused of molesting his granddaughter, does.

Only by allowing the press to report more fairly can we begin to challenge the stereotypical views that are held so vehemently in our society, and engage in a frank, open and, most importantly, informed debate about how best to tackle the most serious of issues that we face.

By implementing the aforementioned strategies, we can uphold the constitutional assumption of ‘innocent until proven guilty’, protect vulnerable victims against potentially disastrous invasions of privacy, inform the public about the realities of crime more effectively, and, most importantly, begin to reap the benefits of reduced rates of (re-)offending.

 

This post was written for, and initially published on, the website for the House of Political Thought.  Please pay them a visit for politically-informed debate.

 

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