Thursday, February 21, 2013

The Case for Anonymity for Men and Boys Accused of Rape: The Final Word


Maura McGowan, the UK's deputy High Court judge, has recommended that men and boys should be granted pre-conviction anonymity in rape cases. COTWA agrees, for the reasons explained below.  Judge McGowan's suggestion has already come under fierce, emotional, and unjust attack.

There seems to be an implicit belief among rape victims' advocates and women's groups that granting anonymity to men and boys accused of rape would be a victory for rapists because it would spare them the punishment of public disgrace unless they are convicted. A UK newspaper reader summed up the feeling when she wrote: "Yes sometimes women lie but an overwhelming number of rape cases result in no sentence so there are men getting away with rape and the least they deserve is for their names to be dragged through the mud."  The chilling implication is that the "few" innocents who might also be dragged through the mud are acceptable collateral damage in the war on rape.

The nooses are long gone from the hanging trees of America's Old South, but human beings retain their eons-old, visceral desire to punish, and to punish harshly, any man or boy who is merely accused of rape, without bothering with due process of law. It is a hallmark of a civilized society to control that desire -- to strive to eradicate heinous criminality by punishing offenders, but also to insure that the innocent aren't punished with them.  Sadly, the entire sexual assault milieu has become so terribly politicized that, too often, emotional reaction has become public policy, and the public discourse occurs in the shade of the hanging tree.

Anonymity Not Necessary Because False Claims Are a 'Rape Myth'

Rape victims' advocates turn a blind eye to wrongly accused men and boys because most don't think the wrongly accused are worthy of anyone's concern. One of their mantras is that false rape claims are a "rape myth," no more common than false claims of any other crime.

This, of course, simply is not true. See note below.*  The fact that the canard is frequently repeated doesn't lessen its dishonesty. In fact, rape lies are told much more often than lies about other crimes, and the stigma of a false rape claim, as explained below, is unique in its severity.

Even if the statistics pumped out by rape victims' advocates on the prevalence of false rape claims were accurate (and they are not -- their stats are notorious for minimizing the prevalence of false rape claims), the number of men falsely accused of the most heinous crime short of cold-blooded murder would still be staggering. Writer Peter Lloyd explained: "Even UK charity Rape Crisis admit that almost 1 in 10 rape allegations are fake. This means that, out of every 10,000 cases that go to trial [in the UK], around 800 men will be named and shamed in the media. All of them innocent sons, nephews, husbands and fathers." Mr. Lloyd believes that blithely opposing anonymity for the presumptively innocent is "sinister" and "smacks of some darker" agenda.

Many Men Accused of Rape Already Have Anonymity: Rape Victims Aren't Being Harmed

Victims' advocates posit a cavalcade of horrors that would befall rape victims if the presumptively innocent were anonymous. In fact, there is real-world evidence indicating that these fears are unfounded. Many accused rapists are already afforded at least limited anonymity, and we are not aware of any reports that any of the hypothetical disasters have been visited on 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.  In the U.S., boys who will be tried as juveniles are often anonymous in the press.

Men whose identities cannot be revealed without necessarily revealing the accuser's identity are usually treated anonymously in both the UK and the U.S.

False, malicious, and unsubstantiated allegations against teachers are an enduring problem, so the British teachers' union spearheaded the law giving teachers limited anonymity until they are charged with a criminal offense. The law is prudent because the vast majority of claims made against teachers are unsubstantiated. Union data shows that fewer than one-in-20 allegations of claims against teachers in 2011, including sexual abuse, resulted in court action. See here.

In the U.S., in the state of Wyoming, the names of defendants accused of sexual assault are kept confidential by law unless and until a judge finds there is probable cause for their cases to proceed to court. A recent attempt to change that law failed because it was believed, as the Speaker of the House put it, that the stigma of being branded a rapist without a finding of probable cause can be as bad as or worse than a criminal sentence. See here.

John Worboys

Rape victims' advocates claim that anonymity for the presumptively innocent will hurt rape victims. They cannot point to any direct evidence of this, but they speculate as follows: many women feel their cases are too weak, in and of themselves, but if the name of the suspect is made public, other victims of that suspect will come forward.

In support of this conjecture, rape victims' advocates routinely trot out the case of the so-called black cab serial rapist, John Worboys, and claim that if he had been granted anonymity as a suspect, other victims may not have come forward to reveal the true extent of his crime.

Worboys' case is a slender reed on which to rest the argument that the presumptively innocent should be denied anonymity. First, it is purely speculative to suggest how Worboys' victims might have reacted if he were anonymous. Second, the fact that Worboys wasn't charged early in his crime spree was due to sharp failures in the way police handled the case, according to Baroness Stern's 2009 Stern Review at page 47. See here. If the police had done their job, seven of Worboys' subsequent victims would have been spared their ordeals, and there would be no room for speculation that they might not have come forward if Worboys had been anonymous. The solution to the Worboys problem is not to blacken the names of the innocent by branding them with indelible rape claims, it is better police work.

There is another problem with rape victims' advocates' reliance on the Worboys case that is rarely discussed but should be. If publicizing the suspect's name causes more victims to come forward, it would necessarily undermine the case for anonymity for rape accusers because there are numerous examples in recent years of serial false rape accusers who might have been brought to justice much sooner -- sparing numerous men terrible ordeals -- if rape accusers were not anonymous under the law (in the UK) or by policies of news outlets (in the U.S.).

Some examples: Jayne Stuart made eight false rape claims but apparently never served a day behind bars. Four of the men were acquitted in trials, and each of her victims suffered a terrible stigma. After her latest false claim, "Judge Peter Bowers said it was unfortunate that there was no anonymity for the men." Serial false accuser Emily Riker made four false rape claims, three in 2010 alone. A four-time serial false accuser targeted British men vacationing on the island of Kos. British newspapers wouldn't even print her name. serial false accuser tried to destroy a man for not giving her a beer. Heather Brenner falsely accused a number of men of rape, including her husband. Michaela Britton made a wide variety of bizarre allegations, including rape, against a number of individuals. A serial false accuser falsely accused David Jansen in a widely publicized case: a pizza deliveryman stopped by his Mr. Jansen's remote cabin in mountains and saw a woman tied up on the couch mouthing, "Call 911." It turns out that the woman (1) enjoyed bondage, and (2) had a history of filing false rape claims. Kelly Walsh made up at least two claims of assault against different men. John Grenier sat in jail for 74 days despite evidence that his accuser had a lengthy history of making false rape claims as shown by at least a half dozen earlier police re­ports.

Despite this, rape accusers are granted anonymity because, as a matter of public policy, the benefits of shielding their identities are deemed to outweigh the detriments. The same policy of weighing the interests at stake must be done for men and boys accused of rape, and the public discourse should not start and end with John Worboys.

It is curious that rape victims' advocates are expressing concern about women not coming forward when the Stern Review at page 45 chided rape victims' advocates because they make it appear that law enforcement is terribly, and uniquely, ineffective when it comes to rape, which could discourage women from reporting their ordeals. (They do this by citing the attrition rate for alleged rape -- the number of convictions as a percentage of number of reported crimes -- which is only 6.5%. But, the Home Office, and everyone else, uses the conviction rate -- the number of convictions secured against the number of persons brought to trial for that given offence -- for all other crimes, and for rape that rate is 58%.) The message this conveys is that women cannot get justice, and, according to the Stern Review, this "may well have discouraged some victims from reporting." Despite the Stern Review's chiding, rape victims' advocates still cite the attrition rate -- disingenuously suggesting to rape victims that they cannot get justice. Rape victims' advocates who are concerned about underreporting of rape would do well to get their own houses in order first, instead of warring on the presumptively innocent.

In addition, writer Peter Lloyd notes that few of the advocates leading the opposition to anonymity are outraged by the false accusers who betray rape victims with their lies. "Yet these women are damaging rape justice more than pre-conviction anonymity ever could," Lloyd writes. Indeed, some rape victims' advocates believe that false rape accusers should not even be prosecuted (it is unfathomable how someone predisposed to lie about rape would be deterred if that policy were adopted).

The Unique, Awful Stigma of Rape

The same stigma that would keep women from reporting their sexual assaults if they were not granted anonymity maligns innocent men and boys, and too often destroys their good names, when they are not granted anonymity. Many rape victims' advocates claim that when it comes to rape accusers, rape is a different kind of crime warranting anonymity. Yet, when it comes to the accused, those same advocates claim the stigma of rape is no different than any other crime. It seems disingenuous to want to have it both ways. There is, in fact, no justification to assume that the social evil of false rape claims doesn't tarnish men in ways false claims about other crimes do not.

For rape claims, the accusation becomes its own conviction in the court of public opinion because it is often 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 the wrongly accused have suffered unspeakable atrocities due to the vile stigma of the claim. These are just the tip of the iceberg. 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.

Anonymity for the Accused Would Be Good For Rape Victims

More rape victims would "come forward" if the men and boys 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. Most rape victims would prefer not to have their identities revealed by inference when they accuse an intimate acquaintance of rape. It is reasonable to assume that a fair number of women are not coming forward precisely because they know their identities will become known when the identities of the men or boys they accuse are publicized.

*NOTE: FBI statistics show that false reporting of sexual assault is multiple times greater than the average for all crimes. (The Politics of Sexuality, Barry M. Dank, Editor in Chief, Vol. 3 at 36, n. 8.) While the percentage of unfounded claims for all crimes has been traditionally set at two percent, an authoritative law review article debunked the canard that only two percent of all rape claims are false by tracing this number to its baseless source. (E. Greer, The truth behind legal dominance feminism’s “two percent false rape claim” figure, 33 Loyola L.Rev. 947 (2000).) Moreover, the last time the FBI reported on "unfounded" rape claims (meaning the claim was false or the elements of the crime could not be met) was 1996 (it never reported on "false" claims per se), and the FBI found that unfounded rape claims were were 15% of all claims -- that's 7-1/2 times the rate for all crimes as a whole. (See Dr. Bruce Gross, False Rape Allegations: An Assault on Justice, Annals of the American Psychotherapy Associaton, Dec. 22, 2008.)

That 15% figure, as it turns out, is in line with Dr. David Lisak's research for his 2010 Violence Against Women study where he found that 14.2% of all claims that could be classified as false claims or that were referred for prosecution or disciplinary action were false claims. That figure represents only the claims we know are false. (The majority of all rape claims can't be classified as either rape or non-rape, much less false claims -- so the exact percentage of false claims is unknowable, but the actual percentage of false claims is likely higher than 14%, and possibly much higher because, among other things, it is reasonably certain that a portion of the claims referred for prosecution or disciplinary action were false.)

A leading feminist legal scholar has acknowledged this irrefutable fact: ". . . the statistics on false rape accusation widely vary and 'as a scientific matter, the frequency of false rape complaints to police or other legal authorities remains unknown.'" A. Gruber, Rape, Feminism, and the War on Crime, 84 Wash. L. Rev. 581, 595-600 (November 2009) (citation omitted). Another legal scholar has explained that the politicization of rape renders it impossible to discern the extent of underreporting. See, J. Fennel, Punishment by Another Name: The Inherent Overreaching in Sexually Dangerous Person Commitments, 35 N.E.J. on Crim. & Civ. Con. 37, 49-51 (2009).