So why was anonymity for rape defendants scrapped in 1988?


With the debate around anonymity for rape defendants resurfacing yet again, it is worth remembering that the UK had a long experiment with the policy not so long ago. When anonymity for alleged rape victims was introduced in 1976, it was accompanied by anonymity for defendants. The policy stayed in place until 1988 when the laws changed, strengthening anonymity for complainants and abolishing it for defendants.

In recent years, this decision to scrap defendant anonymity is often cited as proof that it must be a bad idea. For example, Willard Foxton here.

The Thatcher government – not generally known for its strong stand on women’s rights – repealed it, because it had appalling consequences. Among other things, it meant that the public could not be warned when an accused rapist went on the run before conviction – as he was merely accused, he couldn’t be named.

I was curious about this. The link leads to a dead internet article from prisoners’ newspaper Inside Times. Through the Wayback Machine, I found the original, which quotes (then) Labour minister Maria Eagle in a letter:

Anonymity for defendants in sexual offence cases was repealed under the Criminal Justice Act 1988. It is important to note that the restrictions had caused practical difficulties: for example, if a man escaped custody before conviction, the police could not warn the public he was a suspected rapist unless the judge exercised his power to lift the reporting restrictions.

That is a pretty whopping “unless” right there [my emphasis]. It would also appear to be an entirely hypothetical scenario, there is no suggestion such a thing had ever actually happened. That made me wonder what the grounds actually were for the change in law in 1988. What ‘appalling consequences’ had the policy led to? It proved a fascinating exercise, not least because of the way this debate has flipped around between radical progressives and conservative traditionalists.

When the 1988 Bill was passing through Parliament, there was a proposed amendment from Robin Corbett MP. He was the principled and decent left-wing Labour MP whose proudest accomplishment (as his 2012 obituary noted) was to sponsor the 1976 Sexual Offences (Amendment) Act, which provided anonymity for rape victims.

In the ensuing debate, Corbett explained why defendants had been included in the original amendment, and why he was proposing to retain that. The majority of rape victims were not raped by strangers, he noted, but by their partners or close friends. It would often be impossible to ensure a victim’s anonymity if the defendant is identified. Corbett and those speaking in his support made clear what they believed to be the biggest problem at the time. As Labour colleague Gerald Bermingham MP put it:

The hon. Member has not read the new clause. He has avoided the central issue of the problem, which, to a large extent, lies with the sensationalising by the press of any major crime… Even before charge, details are given of the person detained in custody. Details of the offence are given, and the press is awash with the gory details of the allegation.

In other words, the argument being made in favour of retaining anonymity at the time were what we could broadly call pro-feminist – concerned with protecting rape victims and with concerns about the media sensationalizing sexual offence trials. At the division, those voting to retain anonymity for defendants included most left-leaning MPs, including any identifiably feminist women in the House, such as Gwyneth Dunwoody, Clare Short, Margaret Ewing and Maria Fyfe, who was shadow minister for women at the time.

It seems the entire Conservative party in the Commons voted to scrap anonymity for defendants. So what was their argument? As far as I can tell (sources here ,here, here and here) there was never any suggestion that there had been “appalling consequences” from introducing anonymity. There was a specific concern about a possible loophole through which a hypothetical escaped suspect might be protected from televised e-fits etc [the source of Eagle’s point above] but no suggestion it had ever happened. There is not a single incident mentioned of miscarriages of justice arising, of escaped rapists who cannot be identified in the media or anything similar. Not one.

Instead, there seem to have been only one argument raised at the time, and it was the principle of open justice. It seems that those who opposed anonymity for defendants had probably also opposed anonymity for anyone. There is a lot of harrumphing that defendant anonymity had not been recommended by the 1975 Helibron Report and that the then Labour government had gone further than they should have. As far as I can tell, the argument was strictly a traditionalist one – this is simply not how we do things in this country.

Now I should stress, none of this changes the arguments around the merits or dangers of defendant anonymity in 2015. As I have argued before, it seems to me the best solution might be to begin proceedings with an assumption of anonymity but allow plenty scope for judges to waive that if there is any suggestion that it might aid the investigation and process of justice, including identifying potential additional victims (or runaway suspects, for that matter). But whatever.

The awkward truth, I think, is that this is an issue where there are genuinely good arguments on both sides. It just so happens that “it was abolished in 1988” is almost certainly not one of them.

Comments

  1. mildlymagnificent says

    Really? Here in Australia, reports of arrests and prosecutions for rape and, most often, of offences against children commonly have some comment that the defendant can’t be named “for legal reasons”. They used to say outright that it was because it might identify the victims.

    Basically, the only time defendants are named from the outset are for the classic ‘stranger leaping from the bushes’ kind of cases. Though now they’re often the ‘stranger on the internet’ grooming and/or meeting up with kids.

  2. Ally Fogg says

    No, very different here.

    For instance, I’ll be very vague about this for obvious reasons, but there was a recent (very) high profile sexual abuse case where anyone who read all the published reporting about the trial would have known exactly who the alleged victim was.

    Here it is very exceptional and unusual that a defendant’s name is entirely withheld to protect the anonymity of the victim. It is usually in cases of incest or marital rape where there could literally only be one person who was the victim that it happens.

  3. says

    Keeping a defendant’s identity secret is a huge step toward the kind of secret justice that most sensible people reject out of hand. There’ s a huge potential for abuse when the state can detain someone without the public knowing who’s been detained and charged — and thus not knowing whether the system is even working right. Furthermore, if the defendant’s identity has to be kept secret, then his response to the charges also has to be kept secret; so there’s very little ability for the public to observe their justice system at work, determine whether it’s working right, or even hear valid criticism from the defendant or anyone else who might want to dispute the charges on his behalf.

  4. karmacat says

    Raging Bee, I don’t know what it is like in the UK, but I imagine a defendant would have a lawyer and he or she doesn’t have to remain anonymous if they don’t want to. My impression is that the court could not be the one to identify defendants.

  5. says

    If a defendant went on the run, then surely they would automatically be in contempt of court. Which is a separate offence in its own right. The defendant could then be named (there’s no presumption of innocence for skipping bail), even if only described as wanted in connection with another matter which the judge is not prepared to disclose at this time.

  6. AnarchCassius says

    Actually that’s a really good point Raging Bee but I think it’s easily avoided. In the US at least the victim can usually waive anonymity if they wish.

    and sniped by karmcat.

  7. Carnation says

    @ Ally Fogg

    Do you know if any studies have ever been done about what victims think about anonymity for defendants? I somehow suspect, but it’s nothing more than a hunch, that some might be more willing to go to the police if they knew the defendant would remain anonymous (though of course in the event of a conviction, this would no longer be the case).

    I cannot really see a good reason why rape defendants should be treated differently than other defendants – but I think that the police and crown should be far less trigger happy in identifying those questioned and, arguably, charged with crimes. Once it goes to court, I suppose that’s a different matter.

  8. Marduk says

    http://www.parliament.uk/briefing-papers/SN04746.pdf

    The main argument since 1988 turns out to be a bit different.

    e.g., Lord Falconer:
    “Singling out defendants in cases of sexual offences, as is being proposed, might also
    give the impression that there exists a presumption of doubt about the credibility of the
    complainant in sex offence cases which does not exist with other kinds of offences”

  9. Ally Fogg says

    Carnation [7]

    I don’t know about research with victims, My hunch is that no, it hasn’t been researched. There is an astounding dearth of research on all questions relating to this.

    I do know a (female) barrister who has taken both defence and prosecution rape cases who argues strongly for anonymity on those grounds – that having the alleged rapist identified actually puts off more victims from reporting than it encourages.

    On the dearth of research, there is a great paper by Prof Phil Rumney here which explains how much of the evidence used on both sides of this debate is either spurious or non-existent.
    https://www.academia.edu/1957220/Rape_Defendant_Anonymity_and_Evidence-Based_Policy_Making_2013_76_Modern_Law_Review_109-133

  10. Jose says

    Let’s not forget about a decent enough reason to establish anonymity for rape defendants: most people’s attitude towards them is of the “hang them without trial” variety and rape accusations, even if false, can never be really cast away. Whatever the percentage of cases where rape defendants are in fact innocent, what if a rape defendant were really innocent?

    Which leads me to: what a coincidence it was Margaret Thatcher of all people who repealed rape anonymity for rape defendants, as she’s a right-winger, making her policies on crime the “hard-on-crime” variety, such policies appealing to the “hang them without trial” people. And right on the middle of the Satanic Ritual Abuse moral panic. What a coincidence indeed…

  11. says

    Let’s not forget about a decent enough reason to establish anonymity for rape defendants: most people’s attitude towards them is of the “hang them without trial” variety and rape accusations, even if false, can never be really cast away.

    That’s pretty much true for nearly all other criminal charges. In fact — as public reaction in cases such as Stubenville show, it tends to be LESS true of rape charges than of other charges.

  12. 123454321 says

    Just wondering if there was ever anyone – someone in a position of power – who has publicly and vehemently fought for the abolishment of anonymity for defendants, someone who has then subsequently been falsely accused of rape, only to see their entire career and family (wife, kids and all) get entirely destroyed by the allegation, particularly due to the lack of anonymity rights?

    I wonder if an experience like that might have changed their mind?

  13. Phillip Hallam-Baker says

    The 1988 bill was written after stories in the tabloid press that made little sense at the time. To understand why the stories were written and why the government reacted, some context is needed.

    The real issue was that many in Fleet Street and the media knew that there was a pedophile ring operating in Westminster. Leon Brittan’s name was frequently linked to it. Attempts to write stories were suppressed using the official secrets act and the libel laws. The late Lord McAlpine financed many of the cases.

    Due to the libel laws, most of the names have only surfaced after the people are dead. McAlpine appears to have hatched the crafty wheeze of bringing a provably false accusation against himself, a strategy he wrote about in a book he published.

    At least one of the six Tory MPs involved is still in the commons and is seeking re-election. His name comes up very frequently in the documents, as does that of his wife who is indisputably a very nasty piece of work.

    By this point Thatcher had spent nine years, almost a decade on four hours sleep a day. The effect on her mental health and judgement was not good.

  14. StillGjenganger says

    Phillip Hallam-Baker 13
    I suspect that post is libellous, but that is Ally’s lookout. If you can link to something that backs up those accusations, against Lord McAlpine and those tory MPs especially, please do so, If not, can I politely ask you to keep this kind of insinuations to yourself?

  15. Ally Fogg says

    there is nobody mentioned in that post who is still alive, so there is no potential libel. I’ll leave it in place,

    For what it is worth, I very much doubt there was a connection between the alleged paedophile rings and the anonymity law, but I would be open minded in light of any information about, for example, the tabloid stories mentioned.

    To the best of my knowledge, the concerns about the tabloids at the time were mostly in light of the Ealing vicarage case, where the Sun basically drove a coach and horses through the anonymity legislation at the time.

    But I would be interested in knowing more if you have it, Phillip Hallam-Baker.

  16. Jose says

    To those who talk about “paedophile rings” in the government back in the ’80s, I shall say again that the ’80s were the era of Satanic Ritual Abuse (SRA). One of SRA believers’ major claims was that the government was controlled by multi-generational Satanists who raped children. (Yea, people were crazy back then…)

    If, at a time when people were paranoid about rape and child sexual abuse, news that there were “paedophile rings” in the government, which butressed to a point SRA believers’ claims, did not appear, why should I – or anyone else, for that matter – believe that there were in fact such rings?

  17. Anton Mates says

    That’s pretty much true for nearly all other criminal charges. In fact — as public reaction in cases such as Stubenville show, it tends to be LESS true of rape charges than of other charges.

    I suspect Steubenville is an extreme example. Popular, high-status defendants are going to be given the benefit of the doubt by the public; unpopular, low-status defendants are not. As for the “average” social cost of being charged with rape but not convicted…has anyone actually researched that? I’d imagine it’s pretty hard to put together an appropriate control group.

  18. sonofrojblake says

    why should I[…] believe that there were in fact such rings?

    You’re conflating separate claims. There was a flurry, in the 80s, of extraordinary claims of specifically ritualised, Satan-worshipping child abuse allegations. The ritualisation was fictional. The Satan-worshipping was fictional.

    However, before, during and after the 80s, paedophiles associate(d) with one another to further their activities. They form “rings”. This activity is so commonly observed as to be not worth arguing about. That any given organisation (be it the church, a sports club or even Parliament) might have within it such a circle is not an extraordinary claim.

    It is perfectly reasonable to suggest that persons in positions of power in Parliament would definitely have been able to suppress inconvenient stories about their colleagues.

    It is not even, I think, unreasonable to suggest that the whole “Satanic panic” thing was in part cooked up (or at the very least not completely dismissed) in order specifically to make claims of organised abuse seem over-the-top to the point of ridiculousness. The banal reality of organised abuse was missed in the flurry of devil-worship nonsense.

  19. Hibernia86 says

    I do think that being accused of rape can destroy a person’s life. Since it is in the news that means any future employer could find it, any future date, any future land lord. So those who are accused when they didn’t rape anyone face the same penalty that the guilty do which is social isolation. If you aren’t famous then the vast majority of people are going to assume that you are guilty if you are accused. So it seems very unfair to say that the accuser can stay anonymous while the accused is forced to have their reputation attacked in public and suffer social fallout from it regardless of their guilt or innocence.

  20. John P Reid says

    If an accused went on wrong before conviction, they could have been found guilty as such, they’d gave had their reputation ruined, with no conviction to say they’d fine anything wrong

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