Justice / Kirstin Fairnie

Rape anonymity




The head of the bar council of England and Wales, Maura McGowan QC, has
said in an interview on the Stephen Nolan show that she thinks there is a case to
be made for granting rape suspects anonymity.

Putting aside my surprise that the headlines have been filled by comments made
on the sports channel BBC 5 live, rather than one of the more usual suspects
like the Today programme or the Andrew Marr show, I am relieved to hear that
someone has finally come out in support of one of the key tenets of our justice
system- ‘innocent until proven guilty’. And what’s more, it’s a woman who’s
risking being accused of betraying her sex by hyper-feminists who confuse
rape with ‘feminist issues’. Disappointingly however, she has qualified her
call by claiming that the scandalous nature of rape cases makes it particularly
important that suspects should be granted anonymity. I completely disagree that
accusations of rape are any more poisonous to a person’s reputation than other
criminal allegations.

At first it seems obvious that defendants ought to be anonymous, since the
ramifications of criminal allegations on a defendant’s life are so far-reaching
that it is hard to justify making them public before they have been proven.
There seems to be something in the human psyche that makes it very difficult to
maintain a neutral attitude towards someone who has been accused of a crime,
even before we’ve heard the evidence against them. ‘No smoke without fire’
type attitudes mean that even people who have cleared their names in court
are still stigmatised in society. In fact, this probably makes them more likely
to turn to a life of crime: if the strain of legal proceedings leads to you losing
your family and then lose your job (or contract with Nike, like Oscar Pistorius)
and then you cannot get another job because of your inaccurate reputation, it’s
easy to see how disaffected you would become. If you can’t afford to keep up
payments on your mortgage, you might end up homeless. Worse, you might
turn to fraud or theft to make money, since society hates you anyway, so it
doesn’t seem like your reputation could get any worse.

But there’s more to this than meets the eye. Slander laws are designed to
prevent accusations reaching court without any evidence on which to build a
case, so it ought to be unlikely that a completely bogus claim reaches court.
The high costs of legal proceedings ensure that most plaintiffs cannot afford to
bring spurious cases to court. So usually, the plaintiff at least believes that he
or she has been the victim of a crime. If defendants are protected by anonymity,
plaintiffs might feel that their accusations are not really believed. This might
discourage victims from coming forward, and would allow criminals to get
away scot-free. In cases involving repeat offenders, if only one victim feels
confident enough in the justice system to make legal accusations, this will
diminish the scale of the defendant’s crimes. The Jimmy Saville case has shown

how naming a defendant can encourage other victims to come forward once
they know that they will be believed. This is the case made by the charity Rape
Crisis. However, I don’t really think this argument makes sense. If a defendant
is named once he or she has been proven guilty, then surely other victims would
be prepared to come forward and testify against them? There is no reason why
a stronger punishment could not be given to a convicted criminal if he or she is
later found guilty of multiple crimes.

We need to get to a position where victims trust the justice system enough to
know that they will be believed, and that if they tell the truth they will win
in court, even if their defendant is anonymous. This would ultimately lead
to victims of crime coming forward, not naming and shaming before both
defendant and plaintiff have had the opportunity to make their case in court.


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