Rape law: against anonymity

‘The person who has made these allegations is able to shelter behind anonymity whereas we, the victims, have our names and faces plastered all over the newspapers and television all around the country, along with these most grotesque and disgusting allegations. That’s a great injustice which must be righted.’

So said former Conservative MP Neil Hamilton, after Nadile Milroy-Sloan alleged in July 2001 that Hamilton and his wife Christine had sexually assaulted her. The ‘injustice’ to which Hamilton is referring is that while both rape complainants and defendants were granted anonymity in 1976 by the Sexual Offences (Amendment) Act, the Criminal Justice Act of 1988 retained it exclusively for complainants, removing anonymity from rape defendants.

Still, after the Hamiltons were named as suspects in the rape inquiry, their publicity machine quickly sprung into action. They turned up at the police station with a film crew in tow, appeared on numerous chat shows, and even sold the tapes of their police interviews to the Mail on Sunday, revealing far more detail about the allegations against them than the public had previously known.

So this would seem a strange start to a campaign to extend anonymity to rape suspects – but still a substantial lobby built up around the Hamiltons’ call to address this ‘public scandal’. The UK Daily Mail and Mirror both referred to ‘the law that keeps the woman’s identity secret while exposing the accused to the glare of publicity’ as ‘ridiculous’. Jane Moore, writing in the Sun, suggested that the accused should not be named at least until he was charged – while Lord Corbett, a Labour peer, argued for a return to the pre-1988 position.

On the other side, a lobby predominantly made up of women’s rights advocates opposed the extension of anonymity. To summarise the media debate simply: support for the Hamiltons was expressed by advocating the extension of anonymity, while hostility to the Hamiltons was expressed by rejecting this demand.

The strongest argument in favour of extending anonymity is simple – equality. As Lord Corbett argued, it violates equality to treat the accused and the complainant differently, especially because the arguments used to justify anonymity for the complainant apply at least as strongly to the accused. If we accept that a woman’s reputation is damaged by being named as the complainant in a rape trial, the accused’s is far more damaged – and according to Lord Corbett it may not be completely restored by an eventual acquittal.

Even more worryingly, the experience of people such as Barry Lehaney, who was accused of rape alongside Neil Hamilton, suggest that the defendant’s reputation may be too damaged to receive a fair trial. The complainant’s anonymity may actually exacerbate the hostile publicity that the suspect attracts because she is able to make any allegations that she chooses, protected by the veil of anonymity, while the accused is hampered in his response.

But the argument against extending anonymity is even stronger. This is: concern for open justice. As Barbara Hewson, a UK barrister specialising in human rights, puts it: ‘It is not in the public interest for anonymous prosecutions to take place. The public have the right to know who is being prosecuted in their name.’

Open administration of the law is a fundamental principle of both democracy and natural justice – as expressed in the maxim that justice should not only be done but should be seen to be done. Nowhere is this principle more important than in the criminal justice system. Where the state is potentially depriving individuals of their liberty, we need to be able to keep a check on who these individuals are and what they have done.

Like many of the best principles of the legal system, the principle of open justice is as important in ensuring conviction of the guilty as it is in ensuring acquittal of the innocent. Conservative MP Ann Widdecombe pointed out that when a suspect’s name is published, this might encourage other witnesses to come forward. Not surprisingly, she envisaged that these would be witnesses for the prosecution, but publicity could just as well result in witnesses to exonerate the accused. As the Hamiltons realised, the glare of publicity is also one of the best guarantees that state authorities such as the police will do their job as sensibly, speedily and impartially as possible.

If anonymity were extended to rape defendants there would be no logical reason for refusing anonymity to other defendants, as acknowledged by the Sun’s call for anonymity for everybody accused of a serious offence prior to acquittal. But why limit this to serious offences? Many would argue that there is a far greater public interest in knowing who is being tried for murder than for shoplifting. Furthermore, even a minor charge can damage somebody with an unblemished reputation. If we set off down this path, the criminal justice system could end up shrouded in mystery.

There is one certain way to combine these twin principles of open justice and equality – remove anonymity from rape complainants as well as defendants.

The arguments in favour of anonymity for rape complainants do not stand up to scrutiny, especially when contrasted with the powerful pull of open justice and equality. The main justification given for anonymity is that being named would deter women from reporting rape. But what is the evidence that rape is currently underreported? Indeed, given that from the mid-1980s to the mid-1990s the number of complaints has trebled while the number of convictions has remained constant, there could even be reason to believe that women are reporting rape in situations where there is little likelihood of a conviction.

Moreover, given that the increase in reported rapes is mainly accounted for by allegations of acquaintance rape – where the accused is known to the complainant – anonymity will only occasionally be a genuine option for the complainant.

We should not facilitate the small number of women who make malicious allegations of rape by granting them anonymity – we should know their names, and if removal of anonymity discourages them, so much the better.

As for the vast majority of genuine rape complainants, they have nothing to hide and nothing to be ashamed of. Rape victims should not have to feel stigmatised, and a woman’s reputation should not be considered damaged by her being a rape complainant. But ironically, giving rape complainants the kind of anonymity that we do not grant to victims of other crimes actually reinforces the stigma attached uniquely to rape victims.

The sooner we treat rape in the same way as other serious crimes, the better for both the defendant and the complainant.

Helen Reece lectures in law at Birkbeck College, University of London.

Read on:

spiked-issue: Domestic violence

Sex crime and punishment, by Sara Hinchcliffe

Who sets the boundaries on sexual behaviour?, by Sara Hinchcliffe

Raw Deal, Sandy Starr

(1) Independent 13 August 2001