Monday, July 30, 2012

Renewed calls for anonymity for the presumptively innocent: the reasons they deserve it

A British MP has backed calls to grant defendants in rape trials anonymity. Grahame Morris, MP for Easington, said he is aware of cases where accused rapists have suffered as a result of false claims and believes they should be protected by the law.

Mr Morris said: “I’ve seen some cases where an individual who turned out to be innocent has been subjected to awful abuse and even lost their job. There are malicious allegations of rape and the only way to protect people from that and ensure natural justice is to have anonymity for defendants. I’m not condoning rape, it is a heinous crime, but the fact these names can appear in the local press can sometimes stir up vigilante reactions. People often assume the person charged must be guilty and I think that’s wrong.”  He said that once a case is concluded and someone has been found guilty, reporting restrictions should be lifted.

The effort to give men accused of rape anonymity until they are found guilty, or even charged, failed when it was introduced in the UK two years ago. Many victims' advocates think we need anonymity for rape accusers but not for men accused of rape, and their concerns seem to be posited in good faith. However, COTWA is not convinced that anonymity for anyone is appropriate. Feminist Naomi Wolf and constitutional law scholar Alan Dershowitz, among many others, think that rape accusers should not be anonymous. See here. On the other hand, superstar defense attorney Roy Black, and many others, think that persons accused of rape should be anonymous. See Mr. Black's spirited explanation here.

There are some very important considerations counseling in favor of anonymity for the accused. At the very least, these considerations ought to be part of the public discourse on this critical issue:

I. The Presumptively Innocent are Unfairly Stigmatized by Rape Claims

The message conveyed by granting anonymity for rape defendants is that the harm of publicly identifying innocent men who are falsely accused is severe and unconscionable, not that women are inherently untrustworthy. Justice for rape victims does not depend on the public shaming and humiliation of the presumptively innocent.  For rape claims, the accusation becomes its own conviction in the court of public opinion because it is nearly impossible to undo even the most far-fetched rape claim (that's because of the he said/she said nature of the claim). Legion are the cases where those wrongly accused of rape have suffered unspeakable injustice due to the vile stigma of the claim.

We are always perplexed by those who insist that, on the one hand, when it comes to accusers, rape is a different kind of crime warranting anonymity, but on the other, when it comes to men and boys accused of rape, the stigma of rape is no different than any other crime. In fact, rape is widely regarded as the most loathsome offense in the entire criminal law canon after murder, universally considered worthy of the most severe societal censure and condemnation; in some cultures, rape is regarded as more offensive than murder.

False rape claims have caused innocent men and boys to be killed and to kill themselves; to be beaten, chased, spat upon, and looked upon with suspicion long after they are cleared of wrongdoing. They lose not only their good names but often their jobs, their businesses, their spouses, and the affection of their families and their friends. It is often impossible for the falsely accused to ever obtain gainful employment once the lie hits the news: for the remainder of his life, a falsely accused man will have prospective employers Googling his name and discovering the horrid accusation.

II. Anonymity is Already Given to Some Males Accused of Rape, Without Adverse Consequences to Rape Accusers 

Many accused rapists are already afforded anonymity, without adverse effects to rape victims.  In the UK, anonymity orders under Section 39 of the Children and Young Persons Act 1933 are frequently granted to teen boys accused of sex crimes.  Moreover, men whose identities cannot be revealed without necessarily revealing the accuser's identity are usually treated anonymously by the press in both the UK and the U.S.  The identities of accused males who fall within these two classes are shielded because, as a matter of public policy, the benefits of shielding their identities are deemed to outweigh the detriments. There is no evidence -- none whatsoever -- that granting anonymity to these classes of defendants has in any manner hindered the war on rape.  Thus, in a real world setting, every hypothetical disaster that would supposedly occur if anonymity were granted has been proven to be disingenuous.
III. Granting Anonymity Would Encourage More Women To Come Forward

It is likely that more rape victims would "come forward" if the men they accuse were anonymous. The vast majority of rapes, we are told, are of the acquaintance variety. When a woman accuses a male acquaintance of rape and he is publicly identified, it often isn't difficult to infer who the accuser is. It is reasonable to assume that most rape victims would prefer not to have their identities revealed by inference when they accuse an intimate acquaintance of rape.  We suspect that a fair number of women are not coming forward because they know their identities will become known when the identities of the men or boys they accuse are publicized.

IV. Granting Anonymity Will Not Unduly Inhibit The Prosecution of Serial Rapists

Another argument often trotted out to oppose anonymity for men accused of rape is that anonymity could inhibit the effective prosecution of serial rapists.  This argument is a snare and a delusion.  First, anonymity for rape defendants does not prevent the naming of serial rapists.  It would simply forbid publicly naming men who have only been accused but not convicted of rape. A suspect would be identified if he is convicted. 

Second, the vast majority of rapes are committed by acquaintances where the identity of the perpetrator is not at issue. The number of cases where rape victims might be helped in identifying their rapist by seeing a man's picture on the television news is minuscule. 

Third, it can scarcely be denied that some teen boys and some men whose identities are already shielded must also be serial rapists.  The fact is, there is no evidence that granting anonymity for these classes of defendants has in any manner inhibited the effective prosecution of serial rapists. 

Fourth, anonymity for men accused of rape would not hinder police investigations any more than anonymity for rape accusers hinders police (not to mention innocent men) from learning that a rape accuser has made false rape allegations in the past.  Society has made a policy decision to grant anonymity for women who accuse men and boys of rape because such anonymity is thought to serve other useful purposes.  Anonymity for men would also serve useful purposes, even if police might prefer to have them publicly named.