Random rules

One of the first moves by the new Government – and somewhat premature, some might think – has been to announce that defendants in rape cases should be given anonymity.

It wasn’t in either party’s manifesto, so rather surprising it’s been sprung on us now, without any debate. Not to mention, not announcing it in Parliament first – something these boys are going to have to get used to! I hope someone puts down an urgent question on it as soon as Parliamentary business starts, so the Government can explain just what they’re up to. 

Julie Bindel sets out her opposition in today’s Guardian. I don’t agree 100% with her – I think being falsely accused of rape would be traumatic for anyone, and she seems to suggest that so-called ‘date rape’ doesn’t carry a stigma for the men accused – it does. Perhaps not for celebrities, so much, as I think the public takes the view they’re more likely to be on the receiving end of false accusations (which doesn’t mean the allegations are necessarily false… as you can see, this is a minefield, and I’m caveating like mad here!)

But I think she’s right in saying this move perpetuates the (false) notion that many women lie about having been raped, which will only discourage women to come forward, and may well make it more difficult for them to prove their case in court. The current prosecution and conviction rates for rape are appalling enough as it is, and Avon and Somerset is one of the poorest authorities at bringing cases to court.

This is, incidentally, something David Cameron has purported to be concerned about, (thanks to @gorilerof3b on Twitter for bringing this to my attention).
I’d also like more clarification on just which offences are covered by this new proposal. Is it just rape, as legally defined? Or are other sexual offences covered? What would happen if a defendant was accused of other offences at the same time, e.g. rape and attempted murder, or even rape and murder? Does rape really carry more stigma, and a greater need to protect the defendant’s reputation than allegations of other serious crimes?

There was absolutely no need to rush this announcement, it wasn’t put to the public during the election so the Government has no mandate for it, and we need a proper debate in Parliament before it goes any further.

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Comments

  • ralasdair  On May 21, 2010 at 3:11 pm

    I agree it’s a pretty crap idea. Although I do think the issue it’s trying to address is real, and there needs to be some sort of support for ‘victims’ of false rape accusations as well.

  • jesurgislac  On May 21, 2010 at 3:43 pm

    It’s generally agreed by crime statistics compilers that the percentage of false accusations in rape is no greater than the percentage of false accusations of any other crime (around 4%) – and the police are pretty good (some would say overly good) at weeding out the false accusations before the case is given to the criminal justice system and they decide whether or not to prosecute.

    It’s also confirmed that most rapes – more than half – go unreported, because the victim either can’t believe herself (or himself – men are even less likely to report rape than women) that she was raped, or is sure she won’t be believed.

    Once a case of rape gets to court, slightly over half the cases win a conviction.

    Anyone accused of a crime has the right in a court of law to be presumed innocent until proven guilty.

    But we don’t generally have a problem with the idea that even though Fred Bloggs was found innocent in court of stealing the lead from the local church, still everyone local is pretty damn sure Bloggs did it, given the locally known circumstancial evidence of missing lead from the roof, Bloggs seen around the church at the right time, and Bloggs suddenly acquiring some inexplicable money from somewhere unknown. And it’s perfectly okay to report all of this in the local paper, once the trial’s done and Bloggs has been acquitted.

    Fred Bloggs also has a habit of picking up young women, taking them out to dinner, going on a second date in which he gets her drunk, offers to “drive her home”, drives her instead to an out-of-the-way place to rape her, an then drives her home, pointing out to her on the way that if she talks, he’ll just say it was consensual, and there’ll be no evidence. Eventually one of them reports to the police, who arrest Bloggs, who maintains the young woman was “gagging for it”, and as she was drunk and admits herself that she went out on a date with Bloggs before he raped her, the jury decides “insufficient evidence” and acquits. And to protect Bloggs’ good name, the local paper is not allowed to report that Fred Bloggs does this – or any identifying details which might help anyone realise that the man acquitted is good old Fred Bloggs, last seen at the Slug and Lettuce courteously helping his drunken date into his car for a drive home.

    Why all the concern for the men accused and acquitted – most of whom did actually commit rape, even if they couldn’t be convicted – while no concern whatsoever for the victims, whose rape can’t “unhappen” just because the rapist walked free?

  • ralasdair  On May 21, 2010 at 4:42 pm

    Was that aimed at me? I have absolutely no sympathy for rapists (obviously), but I do think the impact of a false rape accusation is different to that of a false theft accusation, and needs to be recognised as such. Not to the extent of guaranteeing the anonymity, but nonetheless…

  • jesurgislac  On May 21, 2010 at 5:47 pm

    Was that aimed at me?

    Not particularly at you – in fact, I have just saved that long comment and will rewrite it as a blog post, which would probably have been more appropriate in the first place. This had come up in several places before this blog, this just happened to be the place where my thoughts got comment-form, if you see what I mean.

    but I do think the impact of a false rape accusation is different to that of a false theft accusation, and needs to be recognised as such.

    Well, has anyone shown that there’s impact for future employment on being accused and acquitted of rape, versus being accused and acquitted of theft? (I say employment, because that would be testable.)

    But also: being falsely accused of rape – which certainly happens in as much as 8% of cases reported to the police (estimates vary, but the realistic ones look to be 2-8%) is really very different from being charged with rape and acquitted.

    A person is falsely accused if they didn’t commit the crime at all. Obviously, sometimes, regardless of how uber-careful the police are to weed out false accusations, a falsely-accused person will be in court over a crime they didn’t commit.

    But roughly – about half the people who are charged with rape, are acquitted. So even assuming that includes all of the false accusations (which I doubt!) that would still leave a large number of rapists who committed rape, and got away with it.

    So: allowing men who are being charged with rape anonymity in court, will protect more rapists than it will protect men falsely accused.

    And AFAIK, no one has yet shown that a man who has been charged with rape and acquitted, is more likely to see his future career suffer than a man charged with theft or with violent assault who is acquitted. Why should a man who was accused of stabbing his neighbour in the chest and acquitted, be named to the world – while his neighbour, who was charged with rape and acquitted, be allowed anonymity?

  • ralasdair  On May 21, 2010 at 5:55 pm

    I think you missed the bit where I said “I agree it’s a pretty crap idea”.

  • sirrontail  On May 21, 2010 at 10:53 pm

    jesurgislac – So your argument seems to be that we shouldn’t protect those who are accused of rape because we don’t protect those who are accused of other crimes? So shouldn’t you be asking whether we need to give anonymity to all defendants rather than saying we should deny it to defendants in rape cases?

    “Why should a man who was accused of stabbing his neighbour in the chest and acquitted, be named to the world – while his neighbour, who was charged with rape and acquitted, be allowed anonymity?”
    Because we see rape as being a much worse crime to be accused of?

    • Ceebs  On May 22, 2010 at 3:39 pm

      I think the idea that we see rape as being a worse crime to be accused of isn’t correct. It is more that there’s is a perceived imbalance between defendant and accuser. The accuser has to have a level of anonymity without which many of the current people feel unable to come forward, but because of this, the law is at risk of appearing to favour one side. If anonymity is brought to both sides until conviction, then an accusation of systemic bias in this way is harder to sustain.

  • Ben Shepherd  On May 22, 2010 at 2:13 am

    I’m not against this on principle. People are innocent until proved otherwise – and so people accused of a crime have the right to protection.

    But why in rape cases particularly? Arguably the effects of accusation and acquittal are different. Where there is an accusation of theft an acquittal can clear the defendant’s name. With rape there will very often be an assumption that the defendant got away with it because of all the difficulties in securing a conviction.

    Opposition to this proposal will stem from the notion that the damage to reputation is a good thing because it means there is some cost to the defendant even if they are not convicted for their crime.

    The problem that this doesn’t distinguish between the rapist who escapes conviction and the innocent man wrongly accused. Is it better that a small number of wrongly accused men suffer so that a larger number of rapists suffer the same ignominy?

    Instinctively I’m dead against it. And I think that the motivation behind the proposal may well be predicated on some unfortunate, damaging assumptions. But I’ve talked myself into seeing the argument.

  • Ben Shepherd  On May 22, 2010 at 2:17 am

    “So: allowing men who are being charged with rape anonymity in court, will protect more rapists than it will protect men falsely accused.”

    That is undoubtedly true.

    But that doesn’t necessarily make it a bad idea. Indeed, isn’t the evidential burden in criminal law predicated on the idea that guilty people escaping justice is a lesser evil than the innocent being punished?

    All I’m saying is that I don’t think the maths of the situation is a conclusive argument (however persuasive).

  • jesurgislac  On May 22, 2010 at 2:37 am

    Because we see rape as being a much worse crime to be accused of?

    But if rape is regarded as a much worse crime, why are so many people arguing that rapists ought to be protected? The argument that rapists need anonymity because rape is a serious crime is kind of … weird, don’t you think?

    • Ben Shepherd  On May 22, 2010 at 11:37 am

      Jesurgislac – the wording of the your reply has demonstrated quite clearly the unspoken assumption you are relying on.

      ‘The argument that rapists need anonymity….’

      No one is arguing that a rapist needs anonymity. Someone acquitted might. Your assumption is that the acquitted is a rapist who has evaded justice. From that perspective giving him any form of legal protection is ridiculous.

      That’s very understandable and perhaps realistic in the bulk of cases, yet I do not think that can be the basis for any policy. The legal system must treat those acquitted as being innocent of the crime they were accused of.

      • jesurgislac  On May 22, 2010 at 3:03 pm

        No one is arguing that a rapist needs anonymity.

        Really? Because I’m seeing this argument all over the place: that when a rapist is acquitted, he should be allowed the same anonymity as the woman he raped, because now he’s not been convicted of the rape he committed – and most rapists aren’t convicted – it would be unfair to ruin his life.

        Your assumption is that the acquitted is a rapist who has evaded justice.

        My assumption is that as the percentage of false accusations is the same as in any other crime (as I said in my first comment) but the conviction rate versus the reporting rate is very low, that means most rapists have in fact evaded justice.

        From that perspective giving him any form of legal protection is ridiculous.

        Now that’s a jump.

        The legal system must treat those acquitted as being innocent of the crime they were accused of.

        And who said anything else? An acquitted rapist has the right to leave court, no legal conviction, no legal judgement. If he is accused again – and most rapists are repeat criminals – he has the right for the jury to be kept unaware of the previous times he was in court. He has the right to all the usual legal protections of anyone accused of a crime.

        He just doesn’t have the special right for his trial to remain a secret and his name to be unpublished. The rapes he committed don’t unhappen, either.

  • jesurgislac  On May 22, 2010 at 2:41 am

    So shouldn’t you be asking whether we need to give anonymity to all defendants

    I think people who argue that rapists who are acquitted deserve anonymity need to ask themselves why they want this particular protection for rapists, if they feel that it’s OK for people to know that Fred was acquitted of once stabbing someone.

    I am not arguing for anonymity for ANY defendants: but I do think people who argue – as Nick Clegg and David Cameron are apparently arguing – that rapists deserve anonymity because their victims get anonymity, are arguing with a really peculiar logic.

  • Quietzapple  On May 22, 2010 at 11:15 am

    As usual Chameleon’s PR isn’t wholly maladroitly aimed.

    This is aimed at the collapsed BNP vote – it was close to their opposition to climate change theory as their signature policy – they were often ranting about it.

    But probably still more important is the weird coterie of other right wing bloggers and posters online, whose often obscene and homophobic attacks on Gordon Brown helped set the esprit de corps of lesser nasties like Sir Iain Dale & Co.

    Most leaders have their extremist nutters they wouldn’t want to own to, who are truly useful tools, and who must have a sop now and again.

    Hence Chameleon’s lead with this “policy.”

    Home Office/Justice has been an area he has used as a bargaining tool before: Murdoch agreed suppprt was at the cost of Grieve’s job. Grayling was turfed out for his assertion that B & B operators should be allowed to exclude gays, and now theresa may is back (he demoted her in favour of his then fave Caro “Nannygate” Spellman when he won his leadership election.

    Further it is a distraction for the cahttering classes, who might better concentrate on his 6 fold assault on our democracy.

    Hey Ho.

  • kerrymccarthy  On May 22, 2010 at 3:03 pm

    Does anyone know whether the Government plans to include allegations of child abuse (in cases where anonynimity isn’t already granted to protect the child’s identity) or, say, downloading child pornography? Surely that’s as damaging to someone’s reputation, or more so, than an allegation of rape where the jury finds that the woman consented? It seems to me if such cases aren’t included, the issue must hinge on the suggestion of false and malicious allegations, i.e. that (most?) women make things up when they claim to have been raped? As opposed to simple damage to reputation?

  • kerrymccarthy  On May 22, 2010 at 3:06 pm

    PS On re-reading the Julie Bindel article and in particular the numerous comments on the Guardian site, I think it’s a shame the Guardian chose her to author this piece, as her hardline rhetoric makes it easy to attack. This is a more balanced piece: http://www.guardian.co.uk/society/2010/may/20/women-against-rape-anonymity-defendants

    • jesurgislac  On May 22, 2010 at 9:04 pm

      I don’t think the Guardian did “choose” her to author that piece – Julie Bindel notoriously goes her own way. I think the one you linked to is the one the Guardian actually asked to have written – Bindel just decided to do her own inimitable impression of a monkeywrench.

      I agree with you, too, that her rhetoric isn’t likely to convince anyone who’s doubtful or in disagreement – and I agree with her, out of a concern for fundamental human rights and a justice system that treats people who have been raped like crap.

  • Anonymous_Southampton  On May 22, 2010 at 3:26 pm

    @jesurgislac

    Well, has anyone shown that there’s impact for future employment on being accused and acquitted of rape, versus being accused and acquitted of theft? (I say employment, because that would be testable.)

    As a man who has been through a false accusation of rape (was charged on only anecdotal evidence after DNA tests turned up negative – then acquitted in court) when I was 17, I can assure you that the impacts on my life have been far further-reaching than I could have even guessed before the whole affair started.

    I found myself depressed, feeling incessant guilt for something I knew (and still know) I didn’t do, contemplating suicide even months after the acquittal – causing me to lose employment and, probably soon, my house.

    I’m not having a go, I just want to make you see that there are two sides to the coin – and there is no support out there for me. (To reverse the scenario, I was recently assaulted in my local city, and received free support aid, police attention all day, every day, and a hefty compensation.) To this day, I have received nothing for giving 9 months of my life to a liar who decided they were out to get me…

    • jesurgislac  On May 22, 2010 at 9:00 pm

      A_S: Being one of the tiny percentage of men who are falsely accused and the case makes it out of the police station is just as bad as being one of the vast majority of women who are brave enough to report that they’ve been raped and then find that the man who raped her either

      – won’t be charged (for a range of reasons between “insufficient evidence” to “because the woman was drunk and out clubbing without her boyfriend, the police convince her that she may as well give up pressing charges”) or
      – escapes conviction because, hey, the woman was drunk and out clubbing and dressed provocatively, the man claims it was consensual, the jury decides to let him go.

      I’m just not seeing why it should be regarded as far more important to protect the tiny minority of men who are falsely accused, than to protect the vast majority of rape victims.

      • Anonymous_Southampton  On May 23, 2010 at 3:49 am

        I’m in no way saying the rights of accusers to anonymity should be removed or not protected – I just don’t see why allowing the anonymity of the accused until they are sentenced in a court of law by a jury of their peers (and even then, one could argue, naming names does nobody any favours).

        I was fortunate enough to have been under a media blanket for being under 18 – but if it were to have happened when I was not, I don’t know how I would cope had the word been spread even further than it did.

    • jesurgislac  On May 23, 2010 at 9:47 am

      “I just don’t see why allowing the anonymity of the accused until they are sentenced in a court of law by a jury of their peers”

      Sorry, the way this blog is structured means this has to go as a reply to your first comment, not to your third.

      Children have a right to anonymity and treatment regardless of their crimes, absolutely – even child rapists or murderers.

      Most rapes aren’t reported, and most rapists never even see court. Most rapists are repeat criminals.

      That an acquittal in court can’t by itself prove to the public that man is innocent of rape is simply because we’re aware that even when rape was committed, and the rapist is tried, he will about half the time then be acquitted. The rape doesn’t unhappen – the woman he raped has still been raped.

      When arguing that a man charged with rape should have anonymity, that’s giving him the same status as victim as the woman he raped.

      “(and even then, one could argue, naming names does nobody any favours).”

      Well, apart from the past or future victims of the rapist. The past victims may find the courage to come forward when they see that the man who raped them has been charged, even if he was acquitted (and he may not be acquitted next time if half a dozen of his victims are testifying against him in court, rather than just one).

      But in any case: If rape is so trivial a crime it doesn’t matter that most rapists get away with it, it shouldn’t matter that, if it sees court, they won’t escape publicity.

      If rape isn’t a trivial crime, then the key issue is not how to protect a very tiny minority of men who are charged falsely, but how to protect the vast majority of people who are victims of rapists who may even see nothing wrong with sex without consent – after all, the police have never cared.

  • Ceebs  On May 22, 2010 at 4:32 pm

    The big problem is really the low number of case that can be brought to court. One thing is the sheer difficulty of actually obtaining a conviction within the frame of the criminal justice system. Without witnesses from outside the framing of the case can break down into he said/ she said which makes conviction most difficult. The big disadvantage of this move is that it will see a reduction in the number of convictions because with men who have committed this event multiple times and got away with it, other cases from their past will not emerge from the woodwork.

  • anon  On May 22, 2010 at 5:35 pm

    Anonimity for defendants is, in my opinion, essential. In the UK you are innocent until proven guilty and unlike other crimes it is much harder for an innocent person to clear their name.

    Mud definitely sticks in these cases.

    To put this into context. Many years ago my friend met a girl in a nightclub and, after a couple of drinks, went back to his place where they had sex. In the morning she got up and left.

    The next thing my friend knew was on Monday morning police coming to his office to arrest him in connection with rape. He was interviewed, his name went in the local papers (in a small community where everybody knew somebody who knew him etc). He was sacked from his job and his reputation was destroyed.

    What transpired was that the girl, upon arriving home, didn’t want to tell her boyfriend that she had had sex with someone else and told him that she had been raped. After a while, during her interviews with the police, she admitted that she hadn’t been raped and it was consensual.

    My friend was innocent, he hadn’t been charged let alone convicted but mud the certainly stuck and indeed followed him.

    Now he was innocent this no longer became a viable news story and there was no ‘advertising’ that he hadn’t committed any crime. In all this and afterwards the ‘victim’ retained her anonimity because she wasn’t even prosecuted for wasting police time.

    My friend couldn’t find a job in his area because everybody knew who he was. He had to move to an area where he wasn’t known but still had problems working because employers wanted to know why he had been sacked from his last job. He finally found a job but after 1 month when he was sacked. The company had received a tip-off that he was a rapist.

    One year later, unable to find (or keep) work, his wrong reputation following wherever he went, he hanged himself.

    As you can imagine I firmly believe that people accused of rape should be afforded anonimity. If they are convicted by all means put it in every newspaper, shout it from the rooftops. Remember innocent until proven guilty.

  • kerrymccarthy  On May 22, 2010 at 6:23 pm

    I’m really sorry to hear that. I think there’s a good case for anonymity until charges are brought, and in fact I’m surprised that’s not the case. Don’t they normally just say ‘ a 28 year old man has been arrested and is helping police with their enquiries?’ And that would only be in cases where the crime, or alleged crime, had made headlines. I’m surprised that anyone would get to hear about an investigation which was dropped without charges being brought.

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