Rape: Whose Rights come First?
I read somewhere once that mens’ worst nightmare is being accused of rape – of being laughed at – whilst the worst nightmare of women is being subjected to actual rape and violence. Now I don’t remember where I saw this exactly (a brief web search came up with the following article which I would recommend to anyone interested: http://www.pbs.org/kued/nosafeplace/articles/nightmare.html), but this is certainly an expression which has come to mind as a result of a number of stories in the news in recent weeks. The tragic suicide of Frances Andrade, who told a friend prior to her death that being cross examined felt like being raped all over again, has once again brought into question the nature of our adversarial system, and how we treat the victims of violent and sexual crimes. Just days later however, we were being asked to question how we treat the defendants in rape cases, as Maura McGowan, chairwoman of the Bar Council, called for a reinstatement of the anonymity rule for defendants which was abolished in 1988. From both sides, then, reform of an unsatisfactory system is being called for: so whose side should we support?Let start by agreeing one thing: neither side is denying that rape and sexual abuse are horrific crimes which deserve to be punished (except perhaps Chris Grayling’s suggestions that the use of cautions would be one way of solving the problem of witnesses not wanting to give evidence: lets not waste time on this idea though – as solutions go, the phrase “band aid for a bullet wound” comes to mind). On the contrary, it is an acceptance of this fact about the seriousness of this type of crime, which the argument for defendant anonymity is based on. So the question is, should we protect defendants from the stigma attached to these types of crimes which they continue to feel even if acquitted?
The obvious answer is yes: our legal system works on the absolutely inviolable principle of innocent until proven guilty, and therefore those who have not been proven guilty: either prior to or after a verdict, should be treated accordingly. What does not seem to follow through so logically, is why the answer to this problem is anonymity for the defendant, when anonymity carries its own risks. If a potentially dangerous individual is living in society prior to a court case and verdict, then surely those around him, particularly if vulnerable, have the right to know about it. The risk of others being harmed, surely has to outweigh the risk of any temporary social stigma. Another argument put forward, is that even in cases of historical abuse, it is beneficial for it to be known who the accused is, in order to give other potential victims the chance to come forward; with the most obvious and recent example of this being Jimmy Savile.
If a blanket anonymity was in place in England and Wales, we would not have had anywhere near the amount of evidence come to light as has done, and it is unlikely that even the original victims who spoke out would have been believed due to a lack of corroborating evidence. This leads to the greatest danger associated with giving those accused of rape anonymity: that rape cases will get pushed behind closed doors, with victims feeling even less likely to be believed. What is clear from the tragic death of Frances Andade, is that the process of going to trial and giving evidence is difficult enough as it is: how much worse do you think victims would feel, if the system was telling them that so little belief is held in what they are saying, that the defendant wont even be named? Finally, it is worth asking ourselves why the defendants in some cases should get protections that others don’t? As Human Rights barrister John Cooper has said, “Why should somebody who is accused of a sex crime receive anonymity? Why don’t we broaden that to include people who are accused of beating children or murdering children?”
So if we can agree that perhaps the answer to needing more protection for innocent defendants is not as simple as providing anonymity, are there any easy answers to providing more support to victims of crime, so as to prevent them also becoming victims of an unsympathetic criminal justice and legal system? It has been well documented, throughout the fight for fairer justice for victims, that there are no straight forward answers. It is a highly complex process to take a case from the first stage of making an initial complaint all the way through to a successful conviction, with, as we already noted above, barriers at every level. Women need to feel able to report the horrific crimes committed against them too the police, to be believed, for their to be enough evidence for it to be considered worth prosecuting, and then finally for their to be a successful conviction. Complicated – and absolutely vital that this fight goes forward.
The question I ask you then, is whether this is a one or the other choice? Do we need to choose whether to support defendants – and our principle of innocence until proven guilty – or to support victims? I think not. Furthermore, the only way in which we can improve this situation for everyone, is for us to stop thinking that to help one side is to detriment the other. But to come back to our original statement about men and women’s nightmares: I think I would rather be mocked, than be violated. We must remember that it is unlikely that a case will even be made without significant evidence – a protection that already exists for the accused. Therefore I would say that if the burden has to fall one way or the other – which arguably with a little effort it shouldn’t – we must focus on supporting women and ending these violent and violating crimes.