Rape, Defendant Anonymity and Evidence‐Based Policy Making
| Author | Rachel Anne Fenton,Philip N.S. Rumney |
| Date | 01 January 2013 |
| Published date | 01 January 2013 |
| DOI | http://doi.org/10.1111/1468-2230.12004 |
LEGISLATION
Rape, Defendant Anonymity and Evidence-Based
Policy Making
Philip N.S. Rumney and Rachel Anne Fenton*
In 2010, the Coalition government announced in its Programme for Government, that: ‘We will
extend anonymity in rape cases to defendants.’The question of anonymity for defendants accused
of rape and other sexual offences, has been repeatedly raised in parliamentary debates over several
decades, and has also received frequent attention in newspapers and,to a lesser extent, in academic
and professional literature.The debate includes an array of factual claims and arguments that rest
on weak empirical foundations. In November 2010, the Ministry of Justice published a report
entitled: Providing Anonymity to thoseAccused of Rape:An Assessment of Evidence, which was intended
to provide an evaluationof evidence that would inform the debate over defendant anonymity.This
article critically examines this report and its discussion of key issues such as false rape allegations,
and considers whether its conclusions can be relied upon by policy makers.
‘There would be little to say on this subject, were it not for the nonsense that has
been talked about it.’1
INTRODUCTION
In 2010, it came as something of a surprise when the new Coalition government
announced in its Programme for Government, that: ‘We will extend anonymity in
rape cases to defendants.’2This policy did not appear in the election manifestos
of either governing party,3but the idea of defendant anonymity has long been
discussed in political circles.4In the last ten years, the Home Affairs Committee
has, in two reports, recommended anonymity for those accused of sexual
offences, as well as in cases involving historic allegations of sexual abuse.The issue
has also been the subject of frequent attention in newspapers, and to a lesser
*Respectively, Professor of Criminal Justice and Senior Lecturer, Bristol Law School, UWE. The
authors wish to express their appreciation to the two anonymous refereesfor their constructive criticism
and editorial insights.Thanks also to Natasha Bellinger and Lauren Devine for their comments on earlier
versions of this article.
1 A. J.P.Taylor quoting Sir Lewis Namier, in his introduction to F.Tobias,The Reic hstag Fire (New
York: G. P. Putnam’s Sons, 1964) 16.
2The Coalition: Our Programme for Government (2010) 24.
3 The proposal was said to result from ‘negotiations between the two coalition partners [which]
derived from the existing policy of one or both of the governing parties [and] was adopted . . .by
the Liberal Democrat party while in opposition’ HC Deb col 724 15 June 2010.The policy was
endorsed by a Liberal Democratic Party conference resolution in 2006.
4 In 1976, anonymity was introduced for rape complainants and defendants in the Sexual Offences
(Amendment) Act 1976, ss 4–6. Anonymity for defendants was later repealed by the Criminal
Justice Act 1988,s 158(5). For discussion of the reasoning underlying this repeal, see:J. Temkin,
Rape and the Legal Process (Oxford: OUP, 2nd ed, 2002) 307–309.
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© 2013The Authors.The Modern Law Review © 2013 The Modern Law Review Limited. (2013) 76(1) MLR 109–133
Published by BlackwellPublishing, 9600 Garsington Road, Oxford OX42DQ, UK and 350 Main Street, Malden,MA 02148, USA
extent, within the academic and professional literature.5The debate concerning
defendant anonymity includes an array of factual claims and arguments that
are often ‘superficially attractive,’6but on closer analysis rest on weak empirical
foundations. In the 2010 anonymity debate, it was acknowledged by the gov-
ernment that there were questions which could not be adequately answered
without additional empirical evidence. It announced that the Ministry of Justice
would produce a report examining certain key issues. In November 2010, a
report entitled Providing Anonymity to those Accused of Rape: An Assessment of
Evidence (Providing Anonymity) was published.The report was intended to provide
an evaluation of evidence that would inform the debate over defendant ano-
nymity.7However,when the report was published, and in the midst of concerted
Parliamentary opposition, the government announced that the anonymity pro-
posal was to be withdrawn.8
Notwithstanding the withdrawal of the latest proposal, Providing Anonymity
is likely to inform future discussions concerning defendant anonymity. The
question of anonymity for defendants accused of rape,9as well as other sexual
offences, has been repeatedly raised in Parliamentary debates.10 Indeed, since its
publication, Providing Anonymity has already been cited in one such debate.11
This paper will examine Providing Anonymity in detail. This report is important
because it provides not only a case study demonstrating the use of evidence-
based policy making, but also because it gives an insight into the challenges of
using empirical evidence faced by public policy makers generally.12 Further-
more, Providing Anonymity raises two particularly problematic issues in the
anonymity debate, those of f alse allegations and stigma, which mer it detailed
attention. Against the backdrop of the 2010 anonymity debate and, where
5 See for example, D. Wolchover and A. Heaton-Armstrong, ‘Rape Defendant Anonymity’ Crimi-
nal Law and Justice Weekly 7 January 2012, 5; D. Wolchover and A. Heaton-Armstrong, ‘Rape
Defendant Anonymity Part 2’Criminal Law and Justice Weekly 14 January 2012, 24.C. McGlynn,
‘Rape, Defendant Anonymity and Human Rights: Adopting a “Wider Perspective”’ [2011]
Crim LR 199; A. Samuels, ‘Anonymity for the Rape Accused?’ (2003) 67 Journal of Criminal
Law 492; G. Langdon-Down,‘Name and Shame?’ Law Society Gazette 23 October 2003, 24 (all
discussing various issues of relevance to the debate over defendant and complainant anonymity
in rape cases).
6 Criminal Law Revision Committee (CLRC), Sexual Offences Fifteenth Report (1984) at [2.92].
7 Ministry of Justice, Providing Anonymity to those Accused of Rape:An Assessment of Evidence (2010).
8 In a minister ial statement, Crispin Blunt, Under Secretary of State for Justice, stated:‘[Providing
Anonymity] has found insufficient reliable empirical evidence on which to base an informed
decision on the value of providing anonymity to rape defendants’ HC Deb col 25WS 12
November 2010.
9 This article will refer only to adult ‘defendants’as this was the word used by the government in its
proposal.In Parliament, government ministers used this wordto cover not only those who are tried
for rape, but also those suspected of committing rape.
10 Kenneth Clarke, Lord Chancellor and Secretary of State for Justice,noted that arguments con-
cerning anonymity have ‘frequently come before the House over the years’ HC Deb col 724 15
June 2010.
11 Reference was made to Providing Anonymity along with many of the arguments used in the rape
defendant anonymity debate during the debate concerning the Anonymity (Arrested Persons) Bill:
HC Deb cols 1160–1214 4 November 2011.
12 For the pur pose of this article ‘criminal justice policy’ refers to the formulation of government
policy,as well as legislative debates and statutory enactments.
Rape, Defendant Anonymity and Evidence-Based Policy Making
© 2013 TheAuthors. The Modern Law Review © 2013The Modern Law Review Limited.
110 (2013) 76(1) MLR 109–133
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