Rape Crisis Scotland

The case against anonymity for rape defendants

It was with surprise and dismay that we heard that one of the first initiatives pursued by the new coalition government was to examine the possibility of granting anonymity to rape defendants. This move, which burst forth in the absence of any formal consultation, quickly demonstrated that the instinct to protect the interests of a small group of men had been granted precedence over those of one of the most vulnerable groups in our society – rape complainers.  This was perhaps not surprising (particularly given the marked gender imbalance in the new UK Government), but with a conviction rate for rape standing currently at 6% in England and Wales, and a shocking 3% in Scotland, where can there possibly be any justification for making the struggle for women who have been raped to find justice even worse?

And what kind of message does this send out? That there is more doubt surrounding the veracity of a rape accusation than for other criminal charges – or, to put it in the terms that are wearyingly familiar – that women are not to be trusted?

The decision to seek justice in court for one of the most serious and damaging crimes of all is far from automatic. Women who have been raped face a welter of obstacles and disincentives when faced with the decision about whether or not to report what has happened. With the proportion of reported rapes in Scotland that result in a conviction standing at 3% the last thing that is needed is something that will worsen this – and proposing anonymity for those accused of rape is a retrograde step which promises to do exactly that.

There have been many cases where identification and conviction of a perpetrator would not have been possible if women had not been made aware of his identity. Knowing who their attacker was and that were not alone in having suffered at his hands is sometimes the single factor that allows women to come forward and can significantly enhance their chances of receiving justice when they do. Many of the difficulties in securing convictions for rape lie in the hidden nature of the crime, the fact that it is one word against another, and that concrete evidence is often in short supply, if not entirely absent. Rapists rely on the terror, shame and trauma that so often keeps women silent, and in some cases assault one woman after another many times before there is any prospect of discovery. Where the defence of ‘consent’ is used by the man accused, as it often is, it can be difficult for prosecutors to mount an effective case against him, but where a pattern of behaviour can be established, with the experiences of several women giving the lie to the claims of a defendant, conviction is possible. The recent conviction of the taxi driver of John Worboys is a case in point – something which was only made possible when his identity became known, and several women assaulted by him were able to identify him and verify the truth with their own experiences. Worboys is thought to have attacked more than 50 women over a 13 year period.

In Scotland, although some measures (such changes to the law and the implementation of 50 recommendations made by the Crown Office to the way that rape is prosecuted in Scotland) have been put in place here in order to try and improve matters for rape complainers, many far less tangible factors persist in making the search for justice a tortuous process for many – to the extent that some women cannot bear to embark on it and rapists are not brought to account.

The culture of scepticism may have made some advances since the days of the Thames Valley police documentary in 1982, which laid bare in shocking detail the prejudices faced by women reporting rape at the time, but there is no doubt that many of the attitudes underpinning such prejudices live on. It is in many cases a woman’s words and behaviour that continue to be scrutinised rather than those of her attacker, and in the course of rape trials it sometimes seems as if any spurious irrelevance can be thrown into the effort to discredit her.

A study published in 2007 revealed that 7 out of 10 women pursuing rape complaints in Scottish courts can expect to face questioning about their sexual history and ‘character’. This can in practice mean public interrogation on matters as agonisingly private as loss of virginity and use of sex toys, all of which make a further ordeal of the justice process for women seeking justice for the ordeal of rape. Other studies into the attitudes of jurors and the wider public continue to reveal a range of prejudices which also militate against women in this context. Many of these are based in notions of what constitutes ‘appropriate’ behaviour and dress for women, and hold up a paradigm that, if women do not conform to it, they can find themselves open to criticism and suspicion. To further prejudice an already hostile scenario by casting doubt on the word of women through the granting of anonymity to those they accuse of rape simply demonstrates wilful ignorance, a complete refusal to acknowledge the difficulties faced by rape complainers and/or an absence of will to improve their prospects of receiving justice.

There is no justification for granting anonymity to those accused of rape – the impulse to do so is based on the notion that the accusation itself is enough to blight a man’s life for good, and assign to him a stigma that will stick simply by virtue of the accusation having been made, even if he does not go to trial or is found not guilty. Damaging assumptions around the notion of men being falsely accused of rape are repeated wildly and inaccurately in the press and in private conversation every day, but the reality is that this happens no more often in the context of rape than it does for any other crime.

And what about the blight already cast on the life of the survivor and her right to justice? There is a very revealing moment in the drama documentary ‘Consent’ during the (genuine, unscripted) deliberations of the jury who must assess the innocence of the man accused or raping a colleague. One juror reflects that a wrong decision would be more serious if it found against the defendant as it would destroy a young man’s future, whereas if the decision was the wrong one, and found him to be innocent, the wrong committed against the woman is already in her past, and therefore somehow less of a consideration. This line of thinking is typical of the skewed logic so often seen in discussions around rape (particularly in the media) where false equations of this kind result in a higher value being placed on the good name of an innocent man than on the right of a woman who has been raped to receive justice.

If we are serious about taking steps to redress gender inequality, we must accept that the vulnerability of women to sexual assault must, unfortunately, necessarily find its parallel in the vulnerability of men to scrutiny. Women are forced to take account of this reality every day of their lives both out in the street and inside the home, as they take myriad security steps for an extra degree of protection from the threat of sexual violence.  In a world where women face this threat every day, the concomitant for men must be that they are made to account for their motives and behaviour in this arena, even if on occasion such scrutiny finds them blameless.

The impact of the recent proposals around anonymity, although they applied to England and Wales, reverberated in Scotland too, and Kenny McAskill’s assurances that such proposals will not be pursued in Scotland, were greeted with some relief.

in a letter to SNP MSP Shirley-Anne Somerville, he wrote "I'm pleased the Scottish Government will not be following Westminster's example.

"There is no reason why those accused of rape should be singled out for anonymity — indeed, such an approach appears to suggest that rape victims are more likely to be making false allegations than other victims."

The UK Government has also stepped back from this particular brink, and abandoned the proposals to grant anonymity to those accused of rape. However, it remains clear that in so doing, they intend simply to try and achieve the same ends by other means, and to persuade instead the Press Complaints Commission to exert pressure on newspapers and other media to grant defendants the anonymity that common sense, and advocates for the already circumscribed interests of rape complainers have so far denied them.