The
coalition government wants to give anonymity to defendants of rape, well possibly - maybe just up to charge, actually perhaps there's a non-statutory way of doing it... In fact today
the press has reported that there will not be a change in the law.
Since I set myself this task as
my first evidence-based piece, I have struggled with a number of different issues; the mass of research to wade through, a lack of time, and my own emotional responses to the debate. Whilst up to my neck in research reports I also wondered how on earth I would ever distil this down to something shorter and more palatable than a text book.
In the
House of Commons debate on this subject on 8th July, Stella Creasy said that
"The test for this proposal must be whether the intended benefits it could offer outweigh the risks that it poses to detection and prosecution of rape"
I broadly agree, and this has provided the basic method of my analysis, other than I will add that this test must be applied in the context of the overall aims and priorities of the government. In other words, there may be many proposals that could be beneficial, but to be effective a government must choose which ones help it to achieve its overall aims and goals, whilst weighing up priorities in a time and money-constrained world. So I have decided to split this piece into 3 distinct blog-posts. This, the first one, will deal with the evidence to support the benefits of introducing anonymity for defendants. The second with the risks to the overall convicting of rapists. The third will attempt to weigh up the benefits and risks in the relevant context.
So: How does anonymity work? How will it positively impact the right of the defendant to a fair trial? How widespread is the issue of false allegations of rape, and what impact is it having on those innocent defendants? Are there alternative measures that have been considered to protect those falsely accused?
Anonymity works by making it a criminal offence for the media to reveal the identity of the individual in question, or to reveal other information that might lead to them being identified.
Anonymity is currently granted for complainants in rape (and in some other offences) although there is an opt-out which allows a judge to overturn this anonymity in certain situations. Anonymity does not in itself impact the court or trial proceedings, in which the complainant is still able to be named, so it is difficult to see the direct impact of anonymity on the trial itself. I do not have legal or trial experience – it is possible that pre-trial publicity could impact the decisions of trials by jury, but I have not seen anything either in the research, media reports or commons debates to suggest this is a reason for granting anonymity. Rather the arguments center around the issue that the publicity itself causes a
media trial, which is potentially ruinous for the individual, who may never fully shake the stigma associated with the false accusation, and goes against our principle of being innocent until proven guilty.
So how widespread is this? The prevalence of false allegations of rape could be pretty much anything depending on which studies you believe. Philip Rumney’s paper "False Allegations of Rape" in the Cambridge Law Journal March 2006 is an excellent summary of the issues and evidence as regards false allegations of rape in law and its enforcement. It seems that although studies are not lacking in number, they vary widely in quality as well as in results, and suffer from inconsistency in the definition of false allegation, methodological flaws, small sample sizes, and the fact that deciding which cases are false allegations is predominantly subjective and therefore open to interpretation and prejudice. A selection of studies which Rumney collated into a table showed that the results ranged from 1.5% to 90% and the sample size from 18 individuals to 2643. Taking the total number of false allegations divided by the total sample group gives an overall rate of 12.5%, whereas the mean of the rates is 24% and the median 19%. Pick your number!
Baroness Stern has recently been widely quoted from her
independent review of how rape complaints are handled by public authorities, as saying that
“the research that is available gives a wide range of suggested percentages. Some research suggests that a figure of eight to ten per cent of reported rapes could well be false reports. However, those we spoke to in the system felt that there were very few.”
Interestingly both Philip Rumney and Baroness Stern felt that more independent research into this controversial issue would be valuable and add to the debate about legal provisions of anonymity. To my mind the rate and impact of false allegations on innocent defendants of rape compared with other crimes is highly significant to this debate. Slightly bizarrely, I think, Crispin Blunt disagrees and said at the
Commons debate on July 8th on this issue, that
“I want to make it clear that the issue of false allegations is not one of the reasons for considering changes to our policy on rape defendants. It would be were there strong evidence that a significantly greater number of false allegations are associated with rape than with other offences, but the Government do not believe that to be the case.”
To attempt to get some idea of the scale of these false allegations, let's look in a bit more detail at
one study published in 2007 (after Rumney's article) by the Home Office, which looked at attrition in reported cases of rape of a female in England and Wales in 2003/4. 676 cases were randomly selected from 8 police forces in England and Wales. Of this sample, 8% of reported cases were identified as being false allegations, mainly through the victim’s own admission, and were “no-crimed” by the police. However, this 8% only refers to those false allegations that are specifically “no-crimed” by the police, and suggests that all cases that get as far as being called a crime are therefore not false allegations. This may be because in this study there were no cases of false allegation beyond the "criming" stage, or it may be that there were a number of undiscovered false allegations. In this study 68% of "crimed" cases do not result in a charge or caution of any kind, but the reasons for these cases being lost do not include false allegation (the majority are due to insufficient evidence or the case being withdrawn). Is it possible that some of those withdrawn at this stage were in fact false allegations? Another approach would be to look at the number of prosecutions for false allegations of rape, but there does not appear to be any data available on this. We know anecdotally of cases in the media
(see this link for a list), but this does not prove that they are widely prevalent.
If we assumed 10% of reported cases were deliberate false allegations (a little more than the 8% above and
in line with Crispin Blunt’s assertion) that would have been 1309 cases in 2008. What effect did this have on the assumed 1309? How many of them had their names published in the media, lost their jobs, suffered stress or committed suicide as a result, and how does this compare with other crimes? I’m sure we have all heard of anecdotal cases, but it is impossible to get a true ideal of scale without the research being done. Given that most of these cases of false allegation would be classified as a no-crime (8% out of our assumed 10% from the study mentioned above) and therefore not get as far as a detailed investigation, I can't believe that they all receive high profile "media-trials" - but I have no real evidence to back up that assertion.
The guidance notes issued by the Association of Chief Police Officers state that
"Generally people under investigation should not be named but they can and will, with certain exceptions, be identified once they have been charged. This approach balances the principles of open justice with the rights of the individual to privacy, a fair trial and damage to the reputation of individual if no charge is made against them.”
However they go on to say that if the media have the name already of someone they believe is being investigated, that name may be confirmed. This may explain why the cases that we get to hear of are often those concerning individuals already in the public eye. It also provides some credence to my assumption above that not all false allegations are subject to the trial by media issue.
This brings us on to another related question - are there other ways to solve the issue than legislation? The police guidelines above are clearly not stopping identities being published pre-charge, either because they are not adhered to or because the media knew about them anyway. During the
House of Lords debate in 2003 when the sexual offences bill was returned from the Commons with an additional clause regarding anonymity for defendants, Baroness Scotland said that
“We have listened very carefully to the representations from those concerned about the real harm that can be caused by the reporting of defendants' details. We also recognise that much concern in such cases arises from the damaging publicity that is often generated pre-charge. We believe that informed and strengthened guidance to the police and the media is preferable to any change in legislation.”
Following this the Press Complaints Commission issued a note in 2004 to clarify the guidelines relating to those accused of crime (see
here and
here) but as far as I could tell there is nothing which really addresses the issue head on. This is about as specific as it gets:
"Given that there will be occasions where allegations turn out to be ill-founded, particular care must be taken to ensure that they are presented accurately and that conjecture is distinguished from fact."
There is some evidence that Blunt may now be agreeing with Baroness Scotland as he said
last Tuesday that
"We want in the first instance to try to find a non-statutory solution, and given that we had 21 Criminal Justice Acts passed over the 13 years of the last Administration, I am sure that Labour Members will understand why we are loth to find even more statutes to put on the statute book"
There is 1 other argument that I have heard that relates to the benefits of extending anonymity to defendants. It was mentioned by both
Ken Clarke and Crispin Blunt on separate occasions in the Commons. It is to do with the fact that the complainant has anonymity which apparently creates an uneven playing field, thereby disadvantaging the defendant. I have to admit that I find this case a hard one to make. Equality between the two parties (complainant and defendant) sounds right if you don't really think about it. But we know that the complainant is named in the court and during the trial - so from that perspective they are treated the same. It is possible that the impact is indirect, with the complainant feeling they have the upper hand and this on some level influencing the outcome of the trial, but this seems a pretty flimsy case to make. The main reason for giving the complainant anonymity is because it is in the public interest to do so, encouraging more victims of rape to come forward. There is no equivalent public interest argument for giving anonymity to defendants. When anonymity was first introduced in 1975, the Heilbron Committee (Report of the Advisory Group on the Law of Rape: Cmnd 6352, December 1975) concluded for this reason that anonymity should not be extended to defendants, and the Fifteenth Report of Criminal Law Revision Committee, Sexual Offences, Cmnd 9213, April 1984 also agreed saying that
"the tit for tat argument, that the man should be granted anonymity because the woman has it - is not in our opinion valid despite its superficial attractiveness"
Having reviewed the evidence, what are the benefits of granting anonymity to defendants? It is clear from anecdotal evidence that real harm is sometimes caused by reporting details of innocent defendants, yet we do not know how widespread this is, how many innocent defendants are having their details published, and what adverse affects this is having. Bringing in anonymity would certainly benefit those who are falsely accused of rape, but is this enough to justify introducing it? If we have no evidence to demonstrate that rape is a crime that has a particularly high rate of false allegation, and no evidence (other than anecdotal) as to the impact on those falsely accused of rape compared to other crimes, why would the government choose to do this?
Personally I do not believe the equality argument between complainant and defendant, but I would be prepared to consider the possibility that rape has a particularly high rate of false allegations and defendants in this case deserve special protection. To convince me of this fact I would need to see a detailed, objective study of the rate of false allegations and of the impact of these on the individual. Given that the government do not appear to be commissioning any new studies (although the Ministry of Justice has been asked to produce an independent assessment of the current research and statistics on defendant anonymity in rape cases - delayed now until Autumn) it seems I will not be convinced in the near future.
In the next blog post I will look at the evidence for the potential negative impacts of defendant anonymity on the detection and prosecution of rape.