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Anonymity of Rape Defendants

Image © Universal Pictures

About The Author

Yasmin Daswani (Former Writer)

Yasmin is currently a third year law student at Durham University. Yasmin aspires to be a solicitor and is currently interested in criminal and family law. Outside of her studies, Yasmin is a passionate sportswoman; she is part of her university waterpolo team.

In June this year the president of the Oxford Union, Ben Sullivan, was cleared of rape accusations made by two undergraduate students.  Fuelled by a host of historic sex abuse allegations involving prominent TV personalities, the question has once again been raised: should men accused of serious sexual offences be given anonymity until they are charged or even convicted?

Innocent until proven guilty?

In criminal law, a defendant is protected under Article 6 of the European Convention on Human Rights (the right to a fair trial) and presumed to be innocent until proven guilty.  However, in practice, this rarely occurs.   Although no charges were brought against Ben Sullivan, during the period when he was under suspicion, speakers cancelled their arrangements to speak at the Union, photographs of Sullivan appeared in the national press, and there were multiple articles about his private life. Mr Sullivan was acquitted, however the adverse material in the public domain can never be expunged, and the phrase “no smoke without fire” may lead people to have a lingering suspicion of guilt. Consequently he has argued that anonymity should be given to those accused of rape, and his supporters have called for his accusers to be named, arguing that they should have to suffer the negative publicity that he has endured. 

However, The Sexual Offences (Amendment) Act 1992 guarantees complainants in sex cases a right to anonymity.  This is necessary as it allows complainants to speak freely about their ordeal without fear that their story will be spread across newspapers and judgments being made based on their previous sexual behaviour.  Without this guarantee of anonymity, accusers may be fearful of coming forward and there could be a sharp drop in the number of rape and sexual assault allegations. 

Ideally the situation would be parity between the accuser and the accused. As Michelle Heeley states, the ideal situation would be to only name the defendant(s) once they have been charged. This would offer a person who is accused but released the chance to move forward without negative publicity. Yet it is unclear whether giving anonymity to those accused of sexual offences would stop information about a defendant’s identity being published online.  As the footballer Ryan Giggs found out in 2012, it can be difficult to keep personal affairs confidential, particularly when media organisations are based abroad and do not fall under British legislation.

Additionally, we cannot justify giving the accused anonymity in just one area of the law. The main argument for anonymity is to protect innocent people from false allegations, however this insinuates that there are a high number of false accusations for sex crimes.  Yet in her report, Baroness Stern could find no evidence that the incidence of false allegations was higher in rape cases than in other crimes, estimating that only about 8-10% of rape allegations are false.  Moreover, the law appreciates that malicious complaints pervert the court of justice, and punishes those who make false accusations with substantial prison sentences.

Once we understand that accusers of rape are no more likely to report allegations than any other crime, what other justification is there for granting anonymity to those accused?  A report of the Political and Constitutional Reform Committee from 2010 states that ‘rape is such a serious and emotive crime that it attracts both a high degree of stigma for the defendant and a disproportionate degree of media interest. In addition the possibility of pre-emptive vilification of those accused of rape is much greater.’ However this argument is unconvincing; those accused of paedophilia, murder and domestic violence attract just as much stigma as those accused of sex crimes. Thus if we are to have anonymity for those accused of sex crimes, we have to grant anonymity for anyone who is accused of a crime.

The open court principle

Furthermore, the principle of open court is fundamental in the United Kingdom. In the debates of the 1970s and the 1980s on the topic of defendant anonymity, Ivan Lawrence QC MP suggested that it ‘distorts the fabric of our criminal justice system to single out [the rape defendant]’ and that the ‘system of justice of which we are so proud’ relies on the ‘right of access to information’ (Hansard, HC Vol.911, cols 1922-1945 (May 21, 1976). Similarly, Ruth Hall, a campaigner at Women Against Rape, states that giving the accused anonymity in rape cases would imply that the government, and perhaps the criminal justice system as a whole, felt that such complainants were unreliable and so would have the consequence of deterring some complainants from reporting sex crimes.

In accordance with the principle of open court, Richard Glover therefore argues that an open and public trial is therefore the best option for clearing a person’s name publicly. He cites the case of Michael Le Vell who was similarly acquitted following accusations of sexual crimes, and was found not guilty by a panel of his peers;  ‘had his trial and acquittal remained secret, might information not have leaked out somehow and the suspicions of the truth of the allegations not been greater and persisted longer?’

Beside the argument for the necessity of an open court, there is also the fact that when people hear of an arrest, they are more inclined to come forward with witness statements and/or similar stories to create the evidence that is needed to proceed with a charge.  Lisa Longstaff, from Women Against Rape, cites the case of Jimmy Savile as representing the benefit of suspects being named.   Particularly with sex crimes, in many cases victims do not come forward straight away.  For a variety of reasons they may feel ashamed or at fault, but hearing that their perpetrator has done the same thing elsewhere can give them the courage to come forward as well.

One can certainly sympathise with Ben Sullivan and others, who have suffered considerably from being wrongly accused by anonymous complainants. However, this should not be a reason to depart from the important principle of open justice in relation to defendants. The reasons for complainant anonymity in sexual offences trials are clear, powerful and widely accepted. With the current evidence pointing towards a low rate of false allegations, the same cannot be said for defendant anonymity.

Further comment from Don Rehkopf, US Defense Attorney

The below was originally posted as a comment on this article, and has been reproduced by kind permission of Mr. Rehkopf. Please visit donaldgrehkopf.com and Brenna, Brenna & Boyce’s website for more information about his work and experience.

This is an interesting and thought-provoking commentary. Let me begin by noting that I am an American criminal defense attorney and have been defending those accused of crimes for some 39 years. I have also been a public prosecutor twice early in my career. It is important for everyone to keep in mind distinctions, sometimes subtle, sometimes not so, between "policy" choices and legal mandates.

For example, if I am the victim of an armed robbery, why is my identity publicized whereas if I am the victim of a sexual assault, it is not? There are of course cogent policy reasons for this distinction, but are there actual legal reasons for the differing treatment of "victims?" And while legislators may enter into this debate and legislate such, does the implementation of these policies via statute do violence to the core principle of fundamental fairness or due process of law?

The more difficult issue is that posited by the author, viz., should the presumption of innocence - Constitutionally mandated at least in America - provide for anonymity of sexual assault defendants in general unless and until convicted, and more specifically, when the complainant remains publically anonymous? From a purely logical perspective, it is hard to draw a rational distinction between the two. But that merely teases without addressing the concept of open courts and public trials. Add to that some very esoteric - but important - principles where there are significant differences in our mutual legal systems. For example, the law of defamation is much different in the U.K. than in America - and (at least from my observations) prosecutors in the U.K. are more inclined to institute prosecutions against persons who for whatever reasons, falsely claim to be the "victim" of sexual assaults.

That brings me to a second point that I would like to make, viz., that serious debate on this topic is hindered significantly (at least in my opinion) by what I can only term, "definitional fuzziness." If, e.g., we limit discussion to either the statutory or common law definition of "rape," we all know (or can easily locate) the elements necessary to prove the case for a conviction. But, "rape" is a small subset of "sexual assaults" of which there is little, if any, consensus (academic or legal) as to its parameters. Is a friendly, but unwelcome, pat on the butt in a pub on Saturday night a sexual assault or not? The debate about the extent of "false rape complaints" suffers significantly from a lack of uniform definitions and guidelines. Indeed, having read Baroness Stern's Review on this, she in fact notes: "Since the subject of false allegations comes up so often in discussions about rape, and the information about the prevalence of false allegations is so scanty, we have recommended that research be undertaken to establish their frequency." [Review at 13]. In 2013, the U.S. National Academies of Science [NAS] published a comprehensive study on this entitled, "Estimating the Incidence of Rape and Sexual Assault". In this regard they noted that "the measurement of rape and sexual assault has been implemented in different venues, in different ways, using different definitions and different methodologies. The result has been different levels in the estimates." [NAS at 2]

Ironically, it was Lord Chief Justice Matthew Hale who stated that rape "is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused. . . ." See also, Rumney, False Allegations of Rape, 65 Cambridge L.J. 128 (2006). My professional interest in this topic stems from my practice which includes post-conviction relief for those falsely or erroneously convicted.

In this regard, at least part of the "problem" surrounding the issue of false rape/sexual assault complaints lies with my brothers and sisters in the criminal defense Bar. Defending these cases is increasing complex - for every advance in the forensic sciences, the defense must not only know and understand such, but also know the limitations and potential problems surrounding such. When that does not happen the system is bound to fail. Let me give an example from one of my pending cases, a classic "he said-she said" "rape" case. The "victim" claimed that my now client [I did not defend him at trial] first drugged her and then raped her. The client adamantly denied both to include the fact that they hadn't even had intercourse. Unfortunately for the defendant, his defense [defence for my U.K. friends], his lawyers had zero ability to decipher the forensic evidence. While there was evidence of a drug in her toxicology screen, the level of such (even extrapolated backwards) was only 1/2 of the normal therapeutic dose level and far too little to impair, much less cause quasi-consciousness. There was no defense/defence challenge to that evidence. During the SAFE [Sexual Assault Forensic Examination] 12 hours after the alleged rape, her panties were seized as potential evidence and DNA was found on them. Use of Y-Chromosome DNA testing [used when there is a mixture of DNA as in a case such as this] targets only male DNA since only males have the Y-Chromosome in their DNA. That test was "positive," thus purportedly corroborating the "victim's" testimony that she had been raped and the defendant was the only person that she'd had sex with for over 10 days. The client was thus convicted and sentenced to 15 years confinement. But, there was only one problem. Upon my review of the file to include the DNA testing, while it was clear that the Y-Chromosome DNA test was positive, further DNA testing demonstrated however that the male DNA was not my client's DNA, but rather the "victim's" boyfriend's DNA.

To my client in prison it doesn't matter if we label his conviction wrongful or erroneous - he's still in prison. Because there was no objection or challenge to the DNA evidence at trial, that evidence is not "in the record" for appellate purposes. Ultimately, we will get a hearing on a Petition for a Writ of Habeas Corpus, but he will remain imprisoned.

Returning to the initial premise of Ms. Daswani's post, my client's name was prominently plastered over various media sources, his family has more-or-less disowned him, and the legal system has failed him - yet his accuser remains anonymous and "untouchable" in the eyes of the law for all intents and purposes.

I hope to have added something constructive to this discussion - at least something to stimulate more thought on this difficult, but important topic. As they say, "Keep Calm . . . ."

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Tagged: Criminal Law, Justice

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