Anonymity in sex cases: Time does not bleach the stain

And so, as a Durham University student acquitted of rape provides easy meat for indolent editorials in the broadsheets, so renews the now-ritual exhumation of the debate on anonymity in sex cases. Round and round the usual participants go, like those rotisserie chickens at Tesco, only even more bird-brained.

In the red corner, the below-the-line lobotomees who parade every acquittal as proof positive that all women are just waiting for an opportunity to spring a false rape accusation, which is why we should probably name, shame and prosecute all complainants just in case. In the blue corner, the defenders of the status quo, vigorous in impressing that, notwithstanding that another high profile innocent’s reputation has been coated in the stickiest of mud, we resist anonymity for defendants in such cases.

The illusions of the red corner are easily disabused. Anyone who believes an acquittal equates to a factual finding that a complainant has lied only has to read the judgment in the Neil “Doctor” Fox trial to see the number of shades of grey on the sexual offences palette. These clowns can be pwned with a rudimentary refresher in the burden and standard of proof and a cursory thwack around the head with Rook and Ward.

Rather it’s the blue corner, fortified by a curious coalition of defence lawyers, prosecution agencies and political activists, where ingrained attitudes are more complex. To the point where, frankly, I struggle to understand the arguments advanced.

The case in favour of restoring the pre-1988 position, restricting publication of a defendant’s identity up until the point of conviction, is straightforward: it preserves the presumption of innocence, and the liberty of the acquitted, by protecting them from the unique stigma of a sexual allegation until it is proven. The public cannot un-learn, and, as Google demonstrates, do not forget, accusation of sexual offences. Time does not bleach the stain.

Pragmatically, rampant publicity degrades the power of the independence of multiple complainants in a case; it places media and political pressure on the prosecuting authorities to make popular, rather than sensible, decisions on charging in high-profile cases; it feeds the perception that allegations may be made spuriously to defame; and it foments lazy prosecuting when the authorities know they can advertise for complainants to bolster a weak case.

Straightforward points, I’d suggest. By contrast, the reasoning of the anti-anonymity cause betrays it as a political position in search of a justification.

Justice should be open, is invariably where it starts. To which we say yes, but this a qualified rather than absolute principle. The courts impose reporting restrictions in various situations, whether due to the age of participants or the nature of the allegation – for example with complainants in sex cases.

Well it’s a slippery slope, comes the rejoinder. Anonymity will have to be granted to all defendants in all cases. Except of course, it won’t. That’s silly. Just as we haven’t extended automatic anonymity to complainants in non-sex cases, so it will be within the wit of Parliament not to accidentally legislate to give all suspected speeders anonymity for life.

Why then should those accused of sexual offences get special treatment? Because, (in a weary voice) sex is a special case. This is accepted fact, for all the socio-cultural reasons pertaining to taboo, stigma, shame and so forth that inform the raft of procedural and legislative distinction between sex trials and any other. Automatic special measures; section 41 restricting questions on past sexual history; the prohibition on defendants cross-examining complainants in person; Sexual Harm Prevention Orders; notification requirements; and, of course, restrictions on publicly identifying complainants.

But publicising the name of an accused encourages other victims to come forward. And here we strike the true rationale. Prosecutorial expediency. Rather than address the reasons why some complainants don’t feel they can come forward without corroboration, the case is reduced to this: To increase the conviction rate, we’re happy to sound a clarion soliciting public accusations, in the hope that something sticks.

But even accepting this cynical, lazy justification, what objection can there be to conferring anonymity on defendants, but providing a judicial mechanism in cases where a defendant ought properly be named? Just as section 3 of the Sexual Offences (Amendment) Act 1992 provides for limited circumstances in which complainant anonymity can be disapplied, why not a presumption of defendant anonymity, up to conviction, which a Judge upon application can rescind if the interests of justice require?

The only honest answer is the one buried under the mound of disingenuous diversions – that, in the unpopular cases that upset us the most, we are prepared to sacrifice the presumption of innocence, and the dignity of thousands, on the altar of prosecutorial convenience.

This article first appeared in Solicitors Journal

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3 thoughts on “Anonymity in sex cases: Time does not bleach the stain

  1. Pingback: 8 myths busted about the Ched Evans case | The Secret Barrister

  2. Pingback: 10 myths busted about the Ched Evans case | The Secret Barrister

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