Anonymity for rape defendants
|John Worboys - the Black Cab Rapist|
Maura McGowan QC is the chairwoman of the Bar Council and she has recently suggested that men accused of rape should receive anonymity.
While we talk of men being convicted of rape it's worth noting that women can be convicted of it as well and it happens once in a blue-moon. Only a man can be the principle offender, but a woman can be guilty of rape through joint enterprise or in a more limited way by aiding, abetting, counselling or procuring the offence.
While we talk of women being the victims of rape, men can also be raped. As can children of both sexes. The rape of an adult man is relatively rare. I don't have figures for the numbers of male/female children raped each year but when I used to defend those offences the numbers I come across were roughly even.
Why are rape victims given anonymity?Rape occupies a unique position in our law whereby the complainant is automatically granted anonymity for life and that anonymity can only be lifted by order of a court. Typically it is lifted at the request of the victim but on rare occasions it is lifted because the allegation has been found to be false and the complainant convicted of perverting the course of justice. It is not lifted simply because the defendant is acquitted.
When I was about 14 two fully grown adult men tried to rob me. Last year somebody managed to steal my iPhone. Both events were annoying but ultimately neither troubled me. Rape; however, is a very traumatic experience. Victims should not feel ashamed or that what happened was their fault, but I understand both feelings are common. This makes it less likely that the victim of a rape will come forward.
Guaranteeing anonymity helps reassure victims that they can come forward and tell the police what happened to them without finding their name or photograph appearing in the press. The defence will be aware of the complainant's name so no unfairness is caused to the defence in preparing their case for trial. So, there really is no downside to granting victims anonymity.
Anonymity for the defendantEver since I first studied law when I was 16 I have felt that all defendants should be granted anonymity until they have been convicted. If a person is innocent until proven guilty then this makes sense.
In sexual offence cases there is a much stronger reason for anonymity than in cases involving other offences. Those wrongly accused often report that the stigma caused by the allegation simply never goes away. It infects not only the innocent defendant but also their family and close friends. Many reports detail being shunned by friends, family and employers. They frequently move home to escape the problems caused by the accusation even after they have been found not guilty. I seriously doubt that this happens to even those who are actually guilty of other offences, like theft. Antony Worrall Thompson actually went on TV several times to talk about his pilfering ways.
There are a whole host of reasons given against the granting of anonymity for defendants in rape cases. A recent piece in the Guardian gave these reasons:
- Publication in the press traps serial rapists by making other victims more likely to come forward;
- Rape is stigmatising for the victim;
- Defence barristers routinely scrutinise the complainants sex and personal life; and
- Being accused of rape is no worse than being accused of murder or terrorism.
The fact that rape is stigmatising on the victim really has nothing to do with whether the defendant should also receive anonymity. It is stigmatising to be accused of sexual offences so if anything this claim strengthens the need for defendants to receive anonymity.
Apart from not being true that barristers in rape cases have free reign to tarnish a complainants character it's also worth mentioning that this objection has nothing to do with whether a defendant should receive anonymity. While I am on the subject though, I do find it very worrying that the Guardian's report say "'belief in consent' is a permissible defence" in a way that suggests merely believing that the other person consented should never be a defence to sexual offences. For those who don't know, it is only the lack of consent that renders the sexual act a criminal offence. If the defendant were to be deprived of the right to say, "I thought she consented" that is tantamount to saying that an allegation is equivalent to guilt because there is no defence left (apart from, "it didn't happen") to the defendant.
Finally, I do take issue with the claim that an accusation of rape is no worse than an accusation of murder or terrorism. There is something particularly nasty about sexual offenders, not just in reality but also in the minds of people. To be honest, if a friend of mine got into a drunken fight and murdered somebody I had never met then I think that our friendship would probably be more or less unaffected by the conviction. If the same friend got drunk and raped a woman I had never met then I think it would have a big impact on our relationship. In any event, I would suggest that this strengthens my earlier point that I am in favour of anonymity for all defendants not just those accused of sexual offences.
In conclusion, I would quite like to see anonymity for all defendants. However, I do think that those accused of sexual offences should be given this protection even if other defendants are not. After conviction there should be nothing to prevent the press reporting, naming and shaming those who have been found guilty.