Anonymity for rape victims

Speaking notes for ‘Raising the standards of sex crime investigation’ – 26 March
2007, Manchester

Good morning. As you have just heard, my name is Jon Collins and I work for the Fawcett
Society.

For those of you that don’t know us, we are the UK’s foremost campaign for equality
between women and men. Our vision is of a society in which women and men can enjoy
equality at work, at home and in public life and we campaign primarily to close the gender
gaps in access to money, power and justice.

As we have just heard, but I think it is worth repeating, the statistics on rape and sex crime
in this country are truly shocking. Looking at rape, for example, Home Office figures show
that at least 47,000 adult women are raped every year in the UK, while 5% of women in
the UK have been raped since the age of 16. If anything, these figures are likely to be an
underestimate. One study estimated that one in four women in the UK will experience rape
or attempted rape in their lifetime.

However, research suggests that something between 75% and 95% of rapes are never
even reported to the police. Moreover, at present, of the minority of cases that are
reported to the police, only 5.3% lead to a conviction, one of the lowest conviction rates for
rape in Europe. For comparison, thirty years ago this figure was more than 33%.

Against this background of extremely depressing figures it is hard to believe that

anonymity for victims of sexual assaults is subject to debate. However, the last six months
have seen some significant threats to the current situation.

The current law on this is fairly clear. I am not a lawyer so I am not going to go into it in
depth, but the Sexual Offences (Amendment) Act 1976 guaranteed anonymity for rape
complainants. A number of changes in the 1980s and 1990s have seen this extended to
also grant lifelong anonymity to those who report most other sexual offences and have
also meant that complainants’ identities are protected from the moment they report the
offence.

It is therefore a criminal offence for the media to reveal the complainant's identity or any
information that might lead to them being identified. The main exceptions are where the
victim chooses to reveal it themselves or if the victim is accused of perjury, perverting the
course of justice or wasting police time as a result of having given false evidence. Judges

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can also lift the right to anonymity in restricted circumstances, usually if it is seen as
necessary to enable witnesses to be identified.

Despite this, in October 2006, Lord Campbell-Savours, a Labour peer who seems to be on
a one man mission to see changes in the law in this area, used parliamentary privilege to
name a woman who he claimed was ‘a serial and repeated liar’, following the overturning
of the conviction of Warren Blackwell by the Court of Appeal. This story, including the
woman’s name, was then reported in the Daily Mail under their qualified privilege to report
what happens in parliament, despite the fact that her right to anonymity had not been
waived.

However the Lord Chancellor a week later appeared to give his legal backing to their
decision to do so when he said that ‘the purpose of parliament having privilege is so that
there can be free debate in parliament’ adding that ‘there is no point in free debate in
parliament if the free debate is then kept secret by the media’. He concluded that ‘the
purpose of the privilege rule is that as long as there is an accurate account of what is said
in parliament, it can then be broadcast or put in national newspapers’. Despite this, I would
argue that even if the actions of Lord Campbell-Savours and the Daily Mail didn’t actually
break the law, they certainly were not in the spirit of it.

Following this, the case in question also led to a statement by the Attorney General in the
House of Lords on 9 January 2007, in response, inevitably, to a question from Lord
Campbell-Savours. In it, he said that the Government is ‘actively considering’ a change of
the law in this area.

Although the situation is not exactly clear, it seems that the change that the Government is
considering is to amend the powers of the Court of Appeal so that the Court of Appeal has
the same powers as the Crown Court to remove anonymity in very specific circumstances.
A decision on this is expected ‘soon’, and a report in The Times at the start of the month
suggested that ministers are leaning towards giving this power to the Court of Appeal.
However the Solicitor-General, Mike O'Brien, who has been responsible for the proposed
reforms to rape trials, did reiterate that ‘the Government has no plans to remove
anonymity for complainants in the vast majority of cases.’

On the face of it this seems to be a fairly harmless change, largely correcting a legal
anomaly which gives powers to the Crown Court which the Court of Appeal does not have.
However, I think it is unwelcome for two reasons. Firstly, it implies a presumption that
women who make what are judged to be false accusations should be named without the
judge’s conclusion that the accusation was false ever being tested in a trial. Secondly, I
believe it would have a symbolic effect, giving the impression that the protection of
anonymity is under threat, and this in turn could lead to less victims coming forward to
report that they have been attacked to the police as it would increase the, possibly
incorrect, perception that their identities would be at risk of being revealed.

So, that gives us the context of the current debate. I now think it is worth setting out the
arguments for anonymity, although I suspect that they will not be new to most of you.

Why do we need anonymity?

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Among the reasons for the introduction of anonymity in 1976, following the report of the
Heilbron Committee, was that one of the greatest causes of distress to complainants in
rape cases was the publicity that they sometimes suffered when their names and the
personal details of their lives were revealed in the press. Potential publicity was also
thought to be a severe deterrent to women reporting rapes. These reasons, unfortunately,
remain as valid now as they were then. As I said previously, the vast majority of women
who are raped still choose not to report it to the police and any change to the anonymity
protection would be likely to deter even more women from reporting their rape, resulting in
more rapists remaining undetected and putting the public at greater risk.

Two further reasons for anonymity are also set out by Jennifer Tempkin in her book Rape
and the Legal Process. Firstly, anonymity is needed to protect complainants from the
unaccountable stigma which attaches itself to victims of sexual assault. Secondly,
anonymity is needed due to the extent to which the press is ruthless in exploiting sexual
offences in creating sensational coverage, regardless of the victim’s feelings.

In addition, any change to the existing law would reinforce the myth that lots of women are
concocting false claims, which would make it even more difficult to gain convictions in rape
trials in a culture where victims of rape are routinely disbelieved. In fact, there is no
evidence to suggest that reports of rape are any more likely to be false than reports of
other offences, yet Home Office research found that the police in general overestimate the
rate of false reports and this culture of disbelief is a factor in the low conviction rates for
rape.

Also, even if you think that false accusers should be named, any change to the protection
of anonymity is, I think, unnecessary. If it is seen to be in the public interest, and I think it is
unlikely that it would be in all but a tiny minority of cases, anybody making a false
allegation of rape can be prosecuted for perjury, perverting the course of justice or wasting
police time, and would be publicly named.

This all seems fairly straightforward to me, which begs the question of why there is even a
debate about this. Playing devil’s advocate, the arguments for changing the law seem to
have three main strands.

Firstly, one argument seems to be that anonymity needs to be stopped altogether, as men
need to be protected from malicious women who are falsely accusing them of sexual
assault. These women, supporters of this argument suggest, only do so because their own
identity is protected. As I have said, there is simply no evidence that this is taking place
and it seems highly doubtful to me, to put it mildly, that women would pursue false
allegations through the trauma of the police investigation and trial. However there are
undoubtedly some people who believe that this is the case.

Secondly, Lord Campbell-Savours and others have argued that women who have made
false allegations need to be named, so that if they make future allegations the defence will
be aware of their past record. However, there are a number of objections to this. Firstly, in
the event that any further allegations were brought by a particular complainant, it would be
the responsibility of the prosecution to disclose to the defendant what had happened
previously. No changes are needed for that to happen. Secondly, it is very difficult to see
how a judge can be absolutely sure that a false allegation has occurred. Naming the

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complainant is therefore unwarranted. Thirdly, if a complainant was identified, rightly or
wrongly, as somebody who had made false allegations in the past, it would mean that a
rapist would know that he could attack her with impunity, knowing that she would never be
believed.

The third argument for ending anonymity, from an entirely different angle, is that
preserving anonymity for victims of sexual offences preserves the belief that sexual
offences are in some way something that the victims should be ashamed of, feeding the
myth that victims are somehow culpable. There is some merit to this, and in an ideal world
where there was no stigma attached to victims maybe anonymity would not be necessary.
However that is not the case in the real world, with research showing that the fear of public
disclosure is a major reason for not reporting rape [p.31-32: Gap or a chasm]. In this
context anonymity is still vital in allowing victims to come forward.

Therefore, none of these arguments, in my opinion, are sufficiently compelling to require a

change in the law.

Anonymity for defendants

Another issue, often closely related to anonymity for complainants, is that of anonymity for
men accused of rape and other sexual offences. Although this is essentially a different
issue, I think it is worth bringing up briefly here as the two are so often raised together.
Anonymity for men accused of rape has again been widely debated in recent years, and is
currently Liberal Democrat policy. The main arguments for it seem to be that it is
necessary for equality in the law between the defendant and the complainant and that
potentially innocent defendants need to be protected from the stigma of being accused of
rape if they are later found innocent.

However, again I do not see any need for a change to the current position. There is no
evidence that false accusation is a widespread practice – the number of men who are
falsely accused of rape is likely to be miniscule, while the vast majority of women who are
raped still do not report it. The latter is the bigger problem that needs to be addressed.

In addition, once a defendant has been charged, it can be important for the name of the
accused to be published, as it can aid the police in their investigations as other women
who have been assaulted by the same person may be encouraged to report it and other
witnesses may come forward. The previous attempt to give anonymity to men accused of
rape, between 1976 and 1988, was found to hamper police investigations, as they were
worried that they would prejudice a future trial.

Moreover, there is no reason for anonymity for defendants being granted in cases of rape,
but not in cases of other serious crimes, where the perceived stigma would be just as
severe. In terms of equality before the law, what is necessary is equality of those accused
of rape with those accused of other crimes, not equality with complainants. In practical
terms, all that such a move would do is imply that rape complainants are more likely to be
untruthful than other complainants, and that is going to undermine them with juries and
with the police.

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In addition, it is a fundamental principle of our criminal justice system that trials should
take place in public, which means anonymity should be used sparingly and only where
there is a compelling case. Redressing the systematic disadvantage that women face in
the criminal justice process means having to take special steps to protect women’s
anonymity, but this is not true of anonymity for rape defendants.

So what do I think should happen now? Actually I am in the unusual position of saying that
we do not need major change in this area.

However, I do think that the Attorney General must clearly state that the media should not
report the names of rape victims if they are protected by the court, regardless of
parliamentary activity. I also think that changes to lessen the protection of anonymity
granted to rape victims should be publicly and unequivocally ruled out.

Indeed I think that there is a strong case for strengthening the law on anonymity in three
ways. Firstly, I think that judicial discretion on waiving victims’ anonymity needs to be more
closely defined. Unfortunately judges do not get it right on every occasion and I think that
the reasons why a judge might override the anonymity provision should be more carefully
proscribed to ensure that they are not accidentally, or indeed deliberately, abused.

Secondly, I would argue that at the very least rape complainants who are charged with
perjury, perverting the course of justice or wasting police time (and whether this should
ever happen is a separate debate) should retain their anonymity until they are found guilty,
as up until then they should not be assumed to have made a false allegation and therefore
named.

Thirdly, I think that anonymity should not just be for the victim’s lifetime but for ever.
Allowing the victim to be named after their death gives scant regard to the feelings of their
family, and has no positive effects that I can see.

To conclude, I obviously do not want to see innocent men imprisoned for rape. However, I
think that without compromising the presumption of innocence, it is essential to protect the
anonymity of rape victims to ensure that as many victims as possible report offences. The
present uncertainty around anonymity means that victims of rape may believe that they will
face the unwarranted ordeal of exposure and trial by public opinion in the media if they go
to the police. At a time when the Government claims to be committed to improving the
conviction rate in rape cases, this must not be allowed to continue.