Hard to explain

I’m disappointed by how some people don’t seem to understand what the arguments against the anonymity for defendants in rape trials are. I need to get round to categorizing posts (but see my Random Rules, Random Rules – Update, No Woman No Cry and Two Note Swivel posts for more).

Here’s an excellent piece from Liberal Conspiracy.

“Just last year, when serial rapist John Worboys was eventually put on trial for nineteen counts of rape, no less than eighty-five women came forward claiming to have been sexually assaulted by him. Eighty five. Are eighty-five men falsely imprisoned for rape every year? Somehow I doubt it.”

I don’t think that’s quite the right comparison to draw… the proposal to give anonymity to rape defendants is aimed at protecting men who’ve been found not guilty from lifelong vilification, rather than protecting against wrongful convictions, but the example given is compelling. Yes, the justice system needs to uphold the principle of innocent till proven guilty, but it’s wrong to skew the system so that victims of rape are even less likely to come forward and rapists are free to rape again.

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Comments

  • Bertie  On May 28, 2010 at 1:17 am

    How do you suggest we uphold the assumption of innocent until proven guilty if we have a vile press that lives to spread fear among the citizens of this country?

  • Greenleftie  On May 28, 2010 at 1:19 am

    Perhaps the problem is the way rape is portrayed in the media. Both sides use it to tarnish the other sides image.

    Until this stops I don’t think much will change

  • Jamie Edwards  On May 28, 2010 at 1:25 am

    Hi Kerry,

    In your example, the rapist would have been convicted in the trial without the 85 other victims coming forward.

    If the new rules were in force, after conviction, anonymity would be lifted. The 85 women would then learn about the trial and come forward.

    The example you used here in no way backs up the argument against anonymity-until-conviction.

    There ARE examples out there, but this most certainly is not a valid one.

  • Amelia Longcroft  On May 28, 2010 at 1:27 am

    Interesting and sensible comment left on the petition tonight from Lise Gotell, Professor of Women’s Studies at the U of Alberta:

    “I am an internationally recognized Canadian expert on rape law. Extending anonymity to the accused in rape trials will prevent public scrutiny in this problematic area of law and widen the justice gap. I am amazed that the new UK government intends to make this regressive measure one of its first acts. This will diminish the reputation of English/Welsh law internationally.”

    Apart from the fact that defendant anonymity would reinforce the myth that women lie about rape (reason enough to bin the idea, imo), I am concerned about this issue of public scrutiny. If defendant anonymity were to be introduced for those accused of a range of serious offences – an idea that lots of people seem to support – would this undermine the principle of open justice? (Not a rhetorical question: I really don’t understand the implications!)

    • Bertie  On May 28, 2010 at 1:50 am

      @ Amelia the thing is when people speak of “public scrutiny”, more often than not it is the right-wing press creating hype around the case and vilifying certain individuals. Then, even if that perosn is found to be innocent, there name is dragged through the mud. This leads to future problems for said person. With employment. With family. With friends and even themselves. It leads to depression in many cases. The stigma attached is irreversible. People jump the gun and think “no smoke without fire”.

      I know rape cases need to be treated extremely sensitively and cases of women falsely accusing men of rape as Michael pointed out make things harder. I say name and shame those who have been found guilty.

      Jamie is right. The women who come forward after would mean the defendant would be tried again, seperately.

      • Amelia Longcroft  On May 28, 2010 at 2:02 am

        @Bertie

        I would be concerned about trials being conducted behind closed doors.

        And as I’ve commented in response to Ben, the concern shown for the tiny number of men falsely accused is commendable, but I wonder at your lack of concern for the many thousands of women who are raped and never see their attacker brought to justice.

        Our priority must be to support the victims of this terrible crime and bring rapists to justice.

  • Michael  On May 28, 2010 at 1:29 am

    Hi Kerry,

    I realise that when a man’s name is reported it can prompt other victims to come forward. I want that to happen.

    I do feel a little torn though. A few years back I had a one-night stand with someone who decided that she would blame her indiscretion on me. I was arrested at my university halls of residence, taken away in a police car, swabbed, added to the DNA database, interviewed for two or three hours and kept in a cell all day long.

    It was only because a mutual friend had heard a conversation between me and her – after we had had sex – that led the CPS to drop the case. They only did this 4 months later.

    If my name had been published in the local paper I don’t know what I would have been devastated. You must realise that there are some men who *are* innocent and I do worry what effect naming them does to them and their family.

    Perhaps I should have pursued a case against her for the stress she put me through, but then I’m the perfect victim. A victim who doesn’t want to be named in the press.

  • Ben Mortimer  On May 28, 2010 at 1:36 am

    A quick look at the Wikipedia page on false accusations of rape (not a great source, I know, but the relevant passages both cite sources) shows that the lowest estimate of false accusations of rape is around 2%. The same article states that 14,500 cases were reported in 2005/2006. Assuming that the figure is correct, a very low estimate for the number of false accusations would be well in excess of the 85 men in the above quote.

    Further, it would be interesting to see how many cases are substantially affected by additional victims coming forward long after the CPS deemed that there was enough evidence to prosecute the suspect. It is idle speculation at this point, as I’m not certain where to find the figures, but I would imagine that many of those who come forward with additional accusations actually do so after a conviction, and if this is the case there would be little to no change for victims from the system we currently have in place.

    Indeed, annonymity for a suspect may actually benefit victims as well. Given many incidents of rape happen within relationships, or between two parties who are already aquainted, the annonimity of the attacker may allow the victim to make an accusation with less fear of any immediate social consequence to themselves.

    • Amelia Longcroft  On May 28, 2010 at 1:56 am

      @ben

      Re: your figure of 85 men falsely accused of rape, without wishing to diminish the suffering of those men, this is as nothing compared to the suffering of the 60,000-80,000 women who are raped every year in this country, hardly any of whom see their attacker brought to justice.

      Let’s get our priorities right and avoid introducing measures that might set back the (minimal) progress made in encouraging women to report this crime.

      • Ben Mortimer  On May 28, 2010 at 2:28 am

        As I alluded to at the bottom of my post, there are many reasons why victims don’t report rape, and a main factor is social pressure.

        If the investigation and trial are carried out outside of media scrutiny this may possibly make some victims more inclined to report the attack.

        As for the relatively small number of falsely accused, that may be so, but it is very much the lower end of the possible figure (from what I can tell, it is effectively impossible to make any sort of accurate estimate of the number of false accusations).

        Regardless of numbers, the real issue is the perception of guilt among the public.

        When an accusation of sexual impropriety is made, there seems to be an assumption of guilt amongst the wider public. It may be undesirable, but it is rather understandable.

        Not only does this have a life-long impact on the defendant – forever haunted by whispers of ‘no smoke without fire’ – but may also have a prejudicial effect on the trial.

        Particularly in high profile cases, and where there is a long period between charge and conviction, the checks and ballances put in place by the judicial system to ensure fair trial may be overcome by the attention already brought to bare on the defendant.

  • Amelia Longcroft  On May 28, 2010 at 1:51 am

    Indeed the real problem here does seem to be intrusive and prurient media reporting.

    But the fact remains that proposing this measure for rape and rape only promulgates the idea that women lie about rape. Women already know that they are unlikely to be believed if they report rape: this will only reinforce that belief and discourage women from coming forward.

    Either extend anonymity to those accused of a range of serious crimes, or not at all.

    Can anyone answer my question about the implications of defendant anonymity for the principle of open justice?

    • Amelia Longcroft  On May 28, 2010 at 2:08 am

      Clarification: Poor wording there. I don’t see intrusive and prurient media reporting as the ‘real problem’. By that I meant that it’s what seems to cause people to support the proposal.

      The REAL problem is that so many men are getting away with rape to the point that it might as well not be a crime at all.

      Why so little sympathy for the victims?

  • Ben Shepherd  On May 28, 2010 at 1:55 am

    I think that getting the argument right is important. In the previous post on this issue I took a skeptical approach (despite being instinctively against the proposal). I was very unconvinced by arguments predicated on the notion that those accused or acquitted of rape don’t deserve protection because they’re rapists. That may be true in many or most cases but it’s imperative that people not found guilty are treated as innocent, regardless of the crime in question.

    The argument that the proposal protects rapists is a bad one – in purely strategic terms – because it is all too easily countered. Ie. no, it protects those presumed innocent.

    Being instinctively opposed and seeking a justification I was relieved to be totally convinced by Harriet Harman. Allegations in public encouraging other victims to come forward is, I think, an incredibly strong argument in favour of the status quo. Secondly, I think there is a powerful case to be made that changing the law reinforces myths that persist about the likelyhood of false allegations.

    • Amelia Longcroft  On May 28, 2010 at 2:26 am

      Yes, getting the argument right is important. But I haven’t seen anyone arguing that “those accused or acquitted of rape don’t deserve protection because they are rapists”. Where have such arguments been made?

      The EDM tabled by Fiona Mctaggart summarizes the concerns about this proposal well, I think:

      “That this House believes that the Government’s proposal to grant anonymity to defendants in rape cases sends a message to juries and rape victims that the victim is not to be believed; fears that this could inhibit the effective prosecution of serial rapists; is further concerned that this will reverse the progress made on the prosecution of rape cases noted in the independent Stern Review; is further concerned that the Government has put forward the proposal without any research, evidence or examination of these issues; and calls on the Government to withdraw its proposal.”

  • Ben Shepherd  On May 28, 2010 at 2:09 am

    Amelia –

    Totally agree that bringing it in for rape victims only promulgates that myth. To my mind that’s enough reason not to change the law.

    I’m not sure that it would interfere with justice being seen to be done. Does it when children are not named?

    Incidentally, I found an interesting article from almost 10 years ago which quotes the then Director of Public Prosecutions saying that anonymity wouldn’t negatively impact prosecutions. http://bit.ly/9NzXnn

    • Amelia Longcroft  On May 28, 2010 at 2:18 am

      See, the argument that defendants should be given anonymity because complainants are is erroneous.

      There are good reasons for granting anonymity to complainants whereas there are no compelling reasons to grant anonymity to defendants for this particular crime.

      ‘Fairness’ is not treating complainants and defendants the same: it’s treating rape defendants the same as defendants of other crimes.

      You might wish to argue for anonymity to be granted to those accused of a range of serious crimes: that would be coherent. But it is not coherent to say “rape defendants should be anonymous because the complainants are”.

      There’s a good summary of this whole issue in the memorandum prepared by liberty here: http://www.publications.parliament.uk/pa/cm200203/cmselect/cmhaff/639/639ap22.htm

  • Amelia Longcroft  On May 28, 2010 at 2:32 am

    You might also be interested in the comment of the Association of Chief Police Officers’ lead on rape Chief Constable Dave Whatton, quoted by London Assembly Member for North East London Jennette Arnold:

    “The proposal to extend anonymity in rape cases beyond victims would require primary legislation. ACPO has yet to see the detail of the proposals but would welcome being part of the formal consultation process.

    “The welfare of rape victims needs to remain a priority. Our main concern would be in regard to the impact any changes on anonymity would have on victims, in particular on their confidence to come forward and report rape.”

    And with that, I’m off to bed!

  • Amelia Longcroft  On May 28, 2010 at 2:37 am

    Ben – “When an accusation of sexual impropriety is made, there seems to be an assumption of guilt amongst the wider public. It may be undesirable, but it is rather understandable.”

    Au contraire. The wider public is rather more likely to assume that the woman ‘asked for it’ or that she is lying.

    We need a concerted public education campaign to combat rape myths. Something that was suggested by David Cameron in 2007, among other sensible measures with regard to sexual violence.

    • Amelia Longcroft  On May 28, 2010 at 2:41 am

      If you want evidence of how prevalent rape myths are, have a look at this poll conducted by Amnesty: http://www.amnesty.org.uk/news_details.asp?NewsID=16618

      “Around one in 12 people (8%) believed that a woman was totally responsible for being raped if she’d had many sexual partners. Similarly, more than a quarter of people (30%) said that a woman was partially or totally responsible for being raped if she was drunk, and more than a third (37%) held the same view if the woman had failed to clearly say “no” to the man.”

  • JM  On May 28, 2010 at 8:18 am

    i’ve felt for some time that because of the way the press report criminal cases, that perhaps there is an argument for anonymity for ALL defendants in criminal cases until proven guilty.

  • Pepin  On May 28, 2010 at 8:55 am

    While not disagreeing with the fact that rape is a vile crime it is still very difficult to overcome what most people would regard as natural justice. If the accuser’s identity is to be be concealed then it can only be fair that the accused’s identity is also concealed until guilt is proven.

    The big problem is that the moment a complaint is made by a woman against a man there is an almost universal belief that the man is guilty; if later he should prove to be innocent the damage has been done – mud always sticks.

  • Genji Monogatari  On May 28, 2010 at 9:24 am

    “I’m disappointed by how some people don’t seem to understand what the arguments against the anonymity for defendants in rape trials are.”

    I don’t think that’s fair. It seems to me that everyone understands and has sympathy with the arguments against extending anonymity to defendants, but that there is a caucus of like-minded individuals that refuses to acknowledge the arguments for it. Upholding the principle of innocent until proven guilty is a foundation of the law. That extending anonymity to defendants will “skew the system” is a personal position, an opinion.

    When a case is brought to court it is reasonable to suppose that there is enough evidence for the prosecution to make a case. Although the law assumes innocence until proven guilty, lurid media reports and public opinion assumes guilt regardless of evidence or judgement.
    _______________________________________________

    The “myth that women lie about rape” is not a myth: http://bit.ly/b2hReo – you can’t have a group of people free to falsely accuse an individual without consequence if you’re not prepared to protect the innocent from their accusations.

    “I wonder at your lack of concern for the many thousands of women who are raped and never see their attacker brought to justice.” Nobody lacks concern for women whose lives are ruined because their attackers are not brought to justice. This issue is about protecting innocent men from the false accusations enabled by the anonymity granted to accusers. Are their lives and reputations just acceptable collateral damage in the fight against rape?

    Anonymity for the complainant is what encourages victims of rape to report it, not the fact that their attackers’ names will be plastered all over the squalid press and TV reports. Supposing extending anonymity to the defendant will diminish that encouragement is just supposition and opinion.

    Extending anonymity to defendants does not send out a signal that accusers are not to be believed. A defendant being cleared of all charges in 45 minutes achieves that, with or without anonymity. The reality is that, for whatever reason, some women do lie about rape and whether an innocent man is found guilty or not guilty his life is ruined by it.

    It is right that rape victims are given anonymity for the reporting and prosecution of the crime. It is an unacceptable direct consequence of that anonymity that those women who choose to do so are free to concoct false and dangerous accusations against innocent men without consequence, and that is what needs to be addressed.

  • kerrymccarthy  On May 28, 2010 at 2:10 pm

    Just a quick response to Jamie – in the case cited, no, it wouldn’t have made any difference if his anonymity had been lifted after conviction – but doesn’t it show how many women are raped without reporting it? And are they going to be more or less likely to report a rape if a law is passed which seems based on the premise that a lot of women who report a rape are lying about it?

    I agree that when we raise the argument that rape is very difficult to prosecute and only 6% of reported rapes result in conviction, we do then enter murky water on the ‘innocent till proven guilty’ front… some have said I’m arguing that all the men accused of rape are guilty of it, but 94% have ‘got away with it’. That is not the case at all.

    There will be cases of mistaken identity, misunderstandings between the two people involved re the issue of consent, and yes, some false accusations. And in some of the cases reported the police can’t identify the attacker, or can’t put together a convincing enough case. Or the victim might not want to press charges. The fact remains however, that the rape prosecution rate is far too low, and the rape reporting law is appallingly low, and the main reason is because women don’t think they’ll be believed. Why hasn’t the new Government shown any concern about that?

    I’d also reiterate previous questions… What about child abuse cases, where the perpetrator is publicly identified after charges are laid, but the case rests on the word of one victim, who was a child when the offences occured, maybe many years ago. The case would be much stronger if other victims came forward before trial. And what about a man who has met a woman in a club, perhaps drugged her drink, and has been charged with an offence… If other women come forward and say, the same thing happened to me, again before it comes to trial, that makes it far more likely to result in a conviction.

    Final point – some have argued for anonymity for all defendants before conviction. I don’t think that’s the answer, but we do need responsible reporting. In too many cases the press go to town on one side of the story, for example, over-exaggerating the prosecution case, and then barely report the defence – and then suddenly there’s a surprise acquittal, and everyone wonders how on earth the jury could have failed to convict.

  • kerrymccarthy  On May 28, 2010 at 2:11 pm

    P.S. Women who are shown to have concocted false allegations against men can be, and are, named and prosecuted. But we have to be careful how far we go down that path. If women believe there’s a risk they’ll be prosecuted if the jury finds in the defendant’s favour then yes, fewer women will make false claims. But far more women who have been raped, particularly when the defendant is known to them and the case rests on the issue of did she or didn’t she consent, will be deterred from reporting it. And that would be a very retrograde step indeed.

    • Genji Monogatari  On May 28, 2010 at 3:03 pm

      Is that correct?

      “The judge noted that, unlike the men she accused, the woman involved “of course enjoys the full benefit of anonymity” – http://bit.ly/aTHz8V

  • Genji Monogatari  On May 28, 2010 at 5:48 pm

    “doesn’t it show how many women are raped without reporting it?” – No. Nobody knows how many women are raped without reporting it because they don’t report it. This is entirely unsubstantiated opinion. What it shows is how many women may have been raped by that specific individual without reporting it, a staggering number that cannot be applied to other accused rapists.

    “are they going to be more or less likely to report a rape if a law is passed which seems based on the premise that a lot of women who report a rape are lying about it?” – This proposal is not based on that premise. It is based on the premise that some women who report a rape are lying about it and the innocent need to be protected from them.

    “some have said I’m arguing that all the men accused of rape are guilty of it” – Some individuals arguing against this proposal have called it a “rapists’ charter” and the “happy shiney rape culture in the UK”. You may not consider yourself one of those people but like them you seek to conflate a proposal designed to protect the innocent with the shoddy treatment of rape victims and the woeful levels of success in prosecuting rapists in this country, and like them you quote dubious statistics (6% convictions when the rate of conviction for prosecutions is nearer 60%, which is how other crimes are measured, or <1% of actual rapes convicted – you actually offered that as a statistic – or 2% of false accusations when the 8-10% figure is just as reliable) to support a prejudiced concept.

    This proposal will only affect one group of women and that is those who make false accusations of rape because they will no longer get to drag their victims publicly through the mire. Once they're (mostly) out of the equation the rape statistics will be more reflective of reality.

    "The fact remains however, that the rape prosecution rate is far too low… and the main reason is because women don’t think they’ll be believed." – this is doubtless the case (although without accurate statistics it is more of a presumption than a fact) but to use this presumption to support your argument against the proposal is deliberate obfuscation of the argument. The proposal does not in any way signal to rape victims that the law does not believe them. It only seeks to offer some protection to the innocent victims of those women who are lying.

    I completely agree with the argument against the proposal that releasing the defendant's name can encourage previously unreported victims to come forward and strengthen the case. For me this is the only valid argument against it, but I would like to know what examples there are of this? How many previous victims have come forward on this basis?

    "but we do need responsible reporting" – not just responsible reporting, responsible society. If we as members of society accepted that a man acquitted of rape is innocent and did not allow the accusation to affect his employment, family and parental rights, relationships or reputation otherwise then I don't think this would be necessary because only the temporary stress of the court case would be effective.

    • stoprape  On May 28, 2010 at 5:51 pm

      “Nobody knows how many women are raped without reporting it because they don’t report it.”

      Actually, they do. The British Crime Survey gives us a pretty good idea of real crime levels (v reported crime levels). And the BCS shows that something in the region of 60,000 women are raped in England and Wales every year.

      • Genji Monogatari  On May 28, 2010 at 8:19 pm

        Huh? The women who don’t report it do report it? Do you mean the individuals don’t report it to the police but they do report it to the BCS? I don’t follow…

        “A pretty good idea”? Is that a a verifiable figure or an estimate? I read earlier that “We know that over 100,000 women are raped every year.”

  • stoprape  On May 28, 2010 at 8:41 pm

    Genji – if you want to convince people with your arguments, you really ought to look into the facts. Try looking up the British Crime Survey for more details. HTH.

    • Genji Monogatari  On May 28, 2010 at 9:20 pm

      Convince people, stop? Honestly, I hadn’t considered attempting to change such entrenched views. My posts were intended to challenge those opinions, not convert them. The statistics appear to fluctuate depending on what degree of vehemence against innocent victims of false accusation is being employed: 6% of rapes result in a conviction when every other crime is measured against prosecutions, not accusations; 60k rapes per year in the UK rising to “we know” of 100k; <1% of actual rapes result in conviction; etc. etc.

      It's the principle, stop – the principle that a proposed measure to protect innocent victims of false accusation is being deliberately mixed up with the arguments about the shit deal that actual rape victims get from our police and judiciary (and press). The only valid argument against this proposal is that it might (might) reduce the likelihood of previously silent victims coming forward once a real rapist's identity is published. Anything else is just seeking vengeance on the innocent for the crimes of the guilty.

      Continuing the work to get justice for rape victims is a separate issue to the proposal to protect innocent victims of false accusation (and my argument about falsely accused victims' reputations being dragged through the mire applies equally to real rape victims, and I acknowledge that; until the press and we as a society stop with the short skirts, being drunk, being consensually promiscuous accusations then we're not really a civilisation). Throughout this discussion I have actually read opinions that say, "so, x number of rape accusations are false – that's no comparison to x thousands of rape that go unpunished". This proposal is not meant to combat the x thousands of women's lives that are destroyed by rape (work that is ongoing), but the x number of men's lives that are wrecked by false accusation (new work).

      Still, you've made a good point about the x's. What facts does the BCS present about the number of unreported rapes committed in the UK each year?

      • stoprape  On May 28, 2010 at 9:26 pm

        Fine, then campaign to grant anonymity for *all* defendants, or for those accused of a *range* of serious crimes, or – if you want to narrow it down even further – for those accused of a range of sexual offences.

        The problem with this proposal is that it singles rape out when there is no evidence to suggest that the number of false allegations of rape is higher than for other crimes. That is a myth that this proposal will perpetuate.

        Re: the BCS, have a look at this document for some very detailed analysis of BCS stats: http://rds.homeoffice.gov.uk/rds/pdfs08/hosb0308.pdf

      • Genji Monogatari  On May 28, 2010 at 10:06 pm

        “Re: the BCS, have a look at this document for some very detailed analysis of BCS stats: http://rds.homeoffice.gov.uk/rds/pdfs08/hosb0308.pdf

        Thanks. I already downloaded that and spent 15 minutes trying to find the 60,000. I’m a bit rubbish at all those tables. I can promise to read it over the weekend, but it’d be a broken promise.

        I do think the defendant in all sex crimes (the ‘nonce’ crimes in prison parlance, at least I think they are) should receive anonymity because those are the accusations that stick regardless of the cases’ judgements – rape, paedophilia, child pornography, domestic abuse. This proposal only tackles one of them, but it’s a step in the right direction IMO, and although I agree that anonymity for the accuser is not in itself an argument for anonymity for the accused I do think that the abhorrent nature of rape is justification for both parties in a way that fraud, burglary, even murder aren’t; e.g. if you’re acquitted of murder you tend to be believed innocent – if you’re acquitted of rape there’s almost always going to be a degree of doubt over interpretation of consent or legal technicalities/lack of evidence.

        The problem with this issue and with the anonymity compromise is that just about every rape case is individual and a single law or precedent can’t cover every eventuality. I don’t know whether to believe the 2% figure of false accusation (apparently in line with other crimes) or the 8-10% (which must therefore be much greater than), and that’s the point I’m labouring. The question of rape goes way deeper than facts or statistics and it’s a dark area and I have many opinions that are perhaps not directly appropriate to this issue, which is not about rape but about not-rape. However, I just don’t accept that this proposal in any way implies that women who accuse men of rape lie, in general terms. In specific terms, (some) women do lie about it, and that’s all the proposal seeks to address.

        In reality there seems to be enough resistance in Parliament and outside through petitions and blogs, and enough wavering on the matter from the government, for it not to go through. I think, though, that the constant stream of false accusations will warrant a re-evaluation of that before this Parliament’s five years are up.

    • Genji Monogatari  On May 30, 2010 at 7:26 pm

      “the British Crime Survey has a 5 crimes per victim limit and doesn’t count any crime against under-16s”

      Is this true?

      Hmm…

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