Anonymity for the Rape Accused?
| Author | Alec Samuels |
| Published date | 01 December 2003 |
| Date | 01 December 2003 |
| DOI | http://doi.org/10.1350/jcla.67.6.492.19439 |
| Subject Matter | Comment |
COMMENT
Anonymity for the Rape Accused?
Alec Samuels
There seems to be general agreement that the complainant victim V of
an alleged rape should have anonymity. The justification for the ano-
nymity is to encourage her to report the matter to the police and to
protect her from potentially hurtful publicity, in what can be and indeed
is likely to be an emotional and traumatic situation. Why then should
not the defendant D likewise be given anonymity? Lord Woolf CJ has
recently suggested that the issue may need consideration again.
From 1976 until 1988 the defendant did indeed enjoy anonymity.1
The arguments for anonymity for D
If V is to have anonymity, so should D. All parties should be treated
equally and fairly in the criminal justice system.
The proportion of acquittals in rape cases is very high, something in
the order of 90 per cent, so ex hypothesi most of the defendants are
innocent, or at least not proved to be guilty. Unfortunately the incidence
of false accusation by the alleged V is uncomfortably high.
Naturally the trial itself will be held in public, with the press present,
so that everybody can see and hear what is going on—though in
exceptional circumstances the judge can order the trial to be held in
camera. The name and address of D would not be given in court. The
judge would simply remind everybody that the names and identities of
the parties were not to be disclosed. The case could otherwise be fully
reported, although the trial of Mr X on the rape complaint of Ms Y is not
likely to be seen as good copy by the press.
In conducting his defence D is under considerable handicap, in that
generally he cannot refer to the previous sexual experience of V nor the
previous sexual relationship between V and D, except contemporaneous
and similar facts.2This law may be contrary to the concept of a fair trial.3
It would be much better to give the judge the unfettered judicial
discretion to allow or refuse evidence and cross-examination depending
upon the justice of the particular case.
Such is the way that the media report criminal trials that high
prominence is given to accusations and not such high prominence to
denials, and the fact of an acquittal is often given little publicity, so that
the public remember that Mr X was involved in a rape case, but they
forget that he was in fact acquitted, even if it ever came to their
attention. The innocent D can suffer immense anxiety and stress and
adverse publicity, which he may never be able to repair.
1 Sexual Offences (Amendment) Act 1976, repealed by the Criminal Justice Act 1988,
s. 158(5).
2 Youth Justice and Criminal Evidence 1999, ss 41–43.
3 European Convention on Human Rights, Art. 6.
492
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