The Anonymity Debate

Response to
Extending anonymity to sexual crime suspects is a bad idea – here’s why
(full text reproduced here)
by Laura Bates in The Guardian

A group of high-profile men, including singer Sir Cliff Richard and broadcaster Paul Gambaccini, have launched a campaign to change the law so that people accused of sex crimes would not be named unless they are charged. It is impossible to discuss such a campaign without setting it in the wider context of misconceptions about sexual violence and those who report it; misconceptions that have been particularly widely aired in the aftermath of the recent Ched Evans not-guilty verdict, which saw many make similar calls for anonymity on social media.

Entwined with such demands is the public perception that false rape allegations are common. While there are some allegations which prove false, there are misconceptions about the extent of them. There are widespread stereotypes: of “promiscuous” women who regret sexual activity and “cry rape”, or vindictive women who set out to ruin men’s lives with false accusations, either for money or revenge. Whether intentionally or not, any conversation about anonymity in the judicial process raises the spectre of these figures. In the wake of the Evans verdict, they could clearly be seen in tweets such as: “This confirms that 80% of rape ‘victims’ are just drunk sluts who regret being a whore on a night out,” as well as in the complainant repeatedly being branded a “money-grabbing whore” online.

This betrays a confusion about our legal system: a not-guilty verdict does not mean a complainant lied, but that the alleged offence could not be proven beyond reasonable doubt.

Which makes it even worse for the innocent accused. They are never ‘found innocent’ so, even under the law, the mud sticks.

The waters are further muddied by calls for complainants to be stripped of their anonymity to “level the playing field”, an argument that saw the name of Evans’s accuser shared thousands of times on social media both in the aftermath of the initial case, and after the recent verdict.

Agreed. Everyone should receive the protection of anonymity, until and unless they are found guilty of something by a competent court of law.

But such responses completely misunderstand the nature of sexual violence. Since our society heaps shame, stigma and blame on victims, anonymity for complainants is vital to enable people to come forward and report – the most serious sexual offences are already only reported to police in 15% of cases.

You could equally have written, “Since our society heaps shame, stigma and blame on those accused, anonymity for the accused is vital to enable those subsequently found not-guilty — or who are dragged through an investigation but never charged — to regain their previous lives.”

When those accused of offences are named, it gives other previously silenced victims the opportunity to come forward. This is particularly pertinent in sexual offence cases, where survivors may often have been groomed, abused and coerced into believing that nobody would believe them – into feeling isolated or blaming themselves.

As Simon Warr says in his recent blog post, Surely in the febrile atmosphere which permeates this country following Savile’s death, most people are aware they will be listened to sympathetically if they make a complaint.

It would also set a strange precedent to extend anonymity to those accused of sexual offences, while no such anonymity exists for those accused of other crimes, such as murder. It could risk damaging open justice, as an open letter published by the End Violence Against Women Coalition (Evaw) has explained, and as other legal experts concluded after calls for anonymity were last rejected by the government in 2010.

Yes, anonymity should be extended to all, regardless of the alleged crime.

How can a jury be expected to come to the right verdict when they have had their views tainted by stories in the media? As all barristers know when they say something they shouldn’t — and the judge then instructs the jury to disregard what has just been said —  no-one can un-hear, un-see or un-read.

A false allegation of rape is a terrible offence with a devastating impact. But those cases are few and far between. A Crown Prosecution Service review found that in a 17-month period, there were 5,651 prosecutions for rape and 111,891 for domestic violence. During the same period there were 35 prosecutions for making false allegations of rape.

The law will likely only prosecute someone for a false allegation if there is evidence that the falsehood was intentional. However, the law as it stands will prosecute someone for a sex offence on the basis of allegation. Add to this the fact that the police and others have been told to believe ‘victims’ of sex crimes, and it is hardly surprising that the number of prosecutions for bearing false witness is so low compared to the number for rape. One cannot, therefore, conclude that false allegations per se are few and far between.

However, quoting such figures misses the point. How do you square the principle that an individual is ‘innocent until [unless] proven guilty’ — which you promote later in your article — with revealing that same innocent person’s details to a salacious press and those who believe that there’s no smoke without fire?

Even among that small number of cases, the complainants were often young and vulnerable, including some with mental health difficulties…

Making them poor witnesses.

…and, in some cases, the person alleged to have made the false report had – in the words of then-director of public prosecutions Keir Starmer – “undoubtedly been the victim of some kind of offence, even if not the one that he or she had reported”.

And the “some kind of offence” may well have been perpetrated by a third party, yet the police will focus all of their efforts on the accused, an altogether easier target.

Now compare those numbers to the 85,000 women raped every year, according to government statistics, roughly 70,000 who don’t feel able to report, and a conviction rate of just 1,070 rapists.

The 85,000 figure is an estimate based upon surveys.

Simply put, the number of people whose lives are impacted by false allegations is dwarfed by the number who might be prevented from accessing justice if anonymity were granted to the accused (or denied to the accuser) in such cases.

Even if true, this is no solace for the falsely accused, their family and their friends.

No-one would be prevented from accessing justice if anonymity were granted to the accused, just as no-one is actually prevented from visiting the dentist through fear of the drill. What is needed is kindness, understanding and safety for those coming forward, but certainly not the sacrifice of other innocent human beings.

This doesn’t mean we should shrug our shoulders and ignore the experiences of those such as Richard and Gambaccini. Rather, as Evaw urges, we should focus on the true cause of distress and harm in such cases, which is not our legal system, with its principle of innocent until proven guilty, but a sensationalist media producing deeply unsatisfactory reporting on sexual violence.

So, when society heaps shame, stigma and blame on victims, the law must step in and protect their identity. But when distress and harm is done to the falsely accused by releasing their identity, the law is not at fault and we can blame it all on the press.

And, tell anyone who has been through an investigation for rape or child-abuse that the police and others hold to the principle of innocent until proven guilty — they’ve been told to believe the ‘victims’!

Further, if you set store by ‘innocent until proven guilty’, why are you happy to throw the innocent to the media wolves and vicious individuals who need only scant excuse to do terrible things?

This sees those accused of sex offences painted as evil “monsters”; a response that does nothing to help the struggle against sexual violence. Coverage does victims no favours either, from the description of rape in inappropriate and mitigating terms to the portrayal of survivors as either perfect victims or flawed women who brought offences upon themselves. This should be thoroughly investigated and action should be taken to try to resolve these problems.

action should be taken to try to resolve these problems — the old exclamation that, ‘something should be done’; someone somewhere must have a magic wand to fix this issue. All the while we have press-barons and their hacks hiding behind freedom of the press and well-paid lawyers, and individuals who equate being accused with being guilty, there is no solution but anonymity for all.

But extending anonymity to those accused of sexual offences is not the answer, and could do great harm to survivors in an area where it is already very hard to achieve justice.

The argument that we should sacrifice the falsely accused as collateral damage in order to catch the guilty, is no different to the argument that we should drop a bomb on a crowded market square in order to kill senior members of a terrorist organization.

We must let go of the desperate desire to right all wrongs, especially at the expense of doing more wrong. And also given that the law acts after the fact: the wrong of abuse is never actually righted; a guilty verdict on the truly guilty does not undo a rape. Is the mere potential for ‘closure’ for true victims really worth the definite harm done to the falsely accused (and their family and their friends) whose life is never the same again, and which may well be brought to an untimely end?

Further more, the punishment for the falsely accused is worse than for the guilty. First they go through the hell of the investigation and all that it entails and then, if found guilty — which is all too likely in a system that treats an allegation as compelling evidence — their time in prison is more harsh because they won’t admit what they did and begin their ‘rehabilitation’.

It should be noted in these discussions — and here is as good a place as any — that a false allegation may come from the police themselves in a bid to turn a mild concern into a case for prosecution. All too often, people who are judged on facile numerical results — guilty verdicts in this case — will game the system for personal advancement.

If a fraction of the effort that goes into catching offenders, instead went into discovering what turns an innocent new-born into a rapist or paedophile, we might then achieve something beyond the perpetual fire-fighting.

When the state (the law) does wrong in a bid to do right, we know we’ve gone wide of the mark.

For doctors, along with the precept to ‘always put the interests of your patients ahead of your own’ is the principle that says, ‘first, do no harm‘. This canon should be extended to the law, and beyond.