It was in neither party’s manifesto and it is best seen as an idea whose time has passed. It has long passed. Brought in as a last minute backbench amendment in 1975 when the establishment was still uniformly sexist, it deterred complainants, slighted victims, impeded justice and was finally scrapped following a series of deeply critical reports by senior bodies in 1988. It was scrapped by the Tories. If re-introduced it would put into reverse all the immense efforts the last Labour government, the women’s lobby and the criminal justice agencies have done to encourage more women to sustain allegations of rape and to improve what the current Tory Attorney General has called “the astonishingly low conviction rate in rape”.
Anonymity for rape defendants was brought in 1976, in the teeth of the report of the Heilbron Committee, set up by then Home Secretary Roy Jenkins to report on the law of rape. It recommended that anonymity should be given to complainants. It was and still is widely accepted that rape victims have particular difficulty in coming forward to testify about such intimate matters and that anonymity can at least give some protection and encouragement. Many rape complainants have made this clear, in the 44 years since that this safeguard was determinative in giving them the confidence to go to court. In most criminal trials both defendants and witnesses are named, and an amendment was put to this proposal on a “tit for tat” basis to extend anonymity to defendants too.
In 1976 the law of rape was hideously sexist. Firstly, rape in marriage was not a crime. She was deemed to have consented to sex for life, anywhere, any time, simply by marrying him. So her will on individual occasions was irrelevant. He could force sex on her as often as he chose. The effect of this was far wider than marriage; it set a cultural norm that women were owned, for sex, by the men they were involved with. Thus complainants were looked at with askance. Every such woman was treated as inherently unreliable and it was judicial practice to direct a jury that they could not convict the defendant unless she was corroborated by somebody or something else. Additionally her previous sexual conduct was seen as highly pertinent to whether she had consented to the sex in question and allegations, true or false, could be showered on her, in open court to demonstrate that she was promiscuous and to undermine her as a witness. It was in that context that anonymity was extended to protect defendants, because women were likely to lie, were usually trying to hide their promiscuity and hardly had an entitlement to complain at all if they were in a relationship with the defendant.
What is the argument for a return to those old days? Clearly the powerful case for encouraging complainants to court through anonymity has no application to defendants. There is no argument in the coalition’s announcement. What surfaces from time to time is that being identified with a rape causes immediate stigma which is irremovable even by an acquittal. No problem being named as a baby batterer, paedophile, robber of the vulnerable or murderer and few argue for anonymity for those. It is only public exposure to rape charges that do damage. One should ask Colin Stagg, acquitted of the killing of Rachel Nickel some years ago, for his views on that.
In fact, when there is a rape acquittal the defendant is usually immediately vindicated in the public eye and the opprobrium passes to the “liar”, “cheat”,” tart”, false complainant, as she will be characterised, who put him through his innocent suffering. That happens even though the burden of proof means that the case just isn’t proved, not that she made it up. If she has perverted the course of justice or lied on oath the judge can both name her and send the case to the police, and judges generally do.
Supposing I am wrong and the defendant’s agony goes on even after the case, it is no more so than with other allegations. Logically, either we continue to name all defendants, as we have done for centuries, intending that justice should be done publicly, or we launch a wide-ranging debate to consider changing the system to give anonymity to every defendant.
Giving anonymity to rape defendants alone would send out a clear message that rape is a special case and those defendants are a special category, protected from publicity because they are less likely to be convicted. Ergo, witnesses against them are less likely to be believed, charges are trumped up, worthless or vengeful, most of them fail. These defendants are less likely to be guilty than the norm. At worst It is a deeply sexist reiteration of many of those seventies myths. At least it stigmatises rape complainants and presents a jury with a picture that is weighted against her from the start.
Baroness Stern in her recent review of the law of rape, criticised criminal justice agencies for quoting the low conviction rates, of around 6 to 7 per cent of complaints, because we do not count any other criminal offences from complaint to conviction, only after charge. A key point she reiterated is that the fallout of rape complaints is early in the inquiry when women are lowest in spirit and most traumatised. It is an odd idea therefore to stigmatise the few women who do get to court to protect the majority of defendants, who are discharged long before trial. Watertight police procedures that prevent identity leaks before charge, would work and we could certainly legislate for that.
There is a further powerful argument against defendant anonymity, the thrust of much of the police and judicial criticism that contributed to its ending last time round. Anonymity stops police from calling for witnesses to come forward. It is quite common that women who would not testify on their own behalf see the imperative of doing it when other women have suffered at the same man’s hands. Many people do not know that rape is often a serial offence and are galvanised when they realise it. The case of Worboys the taxi driver rapist is one example. Once his identity was known around 70 women came forward with their accounts. It is not possible to design an amendment for potentially multiple cases where anonymity should be lifted to call for more witnesses, precisely because nobody knows which ones are multiples until complainants come forward.
However, it bears repetition that anonymity for defendants, stigmatising complainants and inevitably deterring them will reverse all we have done in government in giving them support. That includes investment in Sexual Assault Referral Centres, to ensure the best early treatment; developing Independent Sexual Violence Advisers to befriend her through court, the tens of Rape Crisis Centres we have supported (though we need to do more) the work of the CPS, specialist training for police and the advent of clear judicial directions such as that from the case of R v D which makes clear that a late complaint is not necessarily a false one. All of this has been done, in the interests of fairly increasing an impossibly poor conviction rate in rape and to convince women that the law will protect not attack them.
The last time this issue resurfaced was in 2003 during the Sexual Offences bill, when though it was a crossbench amendment in the Lords, the Tories championed defendant anonymity for a while. After an excellent Commons Committee debate, in which backbenchers on all sides showed a grasp of the issues, the Tories led by Dominic Grieve sensibly and honestly abandoned it. In particular he accepted the need to support complainants, the problem of appealing for witnesses and he proposed instead that there should be anonymity prior to charge. I think most people would agree with that, though for all charges, not just rape and that, at that time, was the Liberal Democrats’ view. Mr Grieve described himself as “an incremental legislator”, but he too urged the government to look instead at pre-charge anonymity for all.
All that has changed since then is that there is more to be lost, in that Labour investment has worked, more women are coming forward and the conviction rate is finally, slowly, starting to rise. I hope that the ministry of justice spokesperson who called anonymity “a sensitive issue” promising careful analysis of the options and implications is right. Nine words in a joint statement is hardly a thought-through policy. Let’s hope it means anonymity before charge and not reversion to a reactionary mistake which did justice significant harm and was much regretted as out of touch with modern understanding, before it was repealed thirty-two years ago.
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