Anonymity for rape accused and dispelling rape myths – Mark George Q.C.

Maura McGowan Q.C. Chairman of the Bar recently suggested that those accused of rape should be accorded anonymity until such time, if ever, as they are convicted.  Uniquely in respect of sexual assaults, complainants in such cases have long been accorded the same privilege.  As someone who regularly defends in such cases, I have a lot of sympathy with this suggestion.  As defence counsel I get privileged access to my clients and their feelings and I have seen the terrible distress and trauma that such allegations can cause, especially when the allegations appear to be unfounded.  Nonetheless I am not yet persuaded that those accused of rape should be afforded anonymity.

In support of this suggestion it is often said that such allegations carry a particular stigma due to the nature of the allegations.  That is undoubtedly true but it seems to me that there are a number of other offences that carry at least equal if not greater stigma.  Do allegations of involvement in terrorism, especially in the current climate, carry less stigma than an allegation of rape or other sexual assault?  What about offences involving physical assaults including what amounts to little less than torture of children?  Does the murder of a defenceless old lady robbed of her handbag to feed a drug habit not carry at least equal stigma?  As there appears to be no suggestion that anonymity should be extended to persons charged with such offences I cannot see a sufficient argument to afford those charged with rape offences a privilege not accorded to others.

By the same token however I do not find the argument of those who oppose anonymity that to allow it would hinder allegations of rape and similar allegations very persuasive.  In the huge majority of rape cases the identity of the alleged assailant is already known to the complainant. In those cases where the identity is not known it follows that there is no name to be broadcast.   The number of cases in which complainants come forward after an assailant has in fact been named are very rare and would not in themselves justify denying anonymity to an accused.

Amongst the responses provoked by Ms McGowan’s suggestion, Lisa Longstaff writing in the Guardian saw fit to repeat several myths about rape cases that are misleading and which ought to stop being peddled.  The first of these is the suggestion that only 6.5% of reported rape cases result in a conviction.  This is a misleading figure that has been peddled for many years by those who evidently feel that the criminal justice system is hopelessly biased in favour of those accused of rape and other sexual offences.  This figure is only obtained by including all the cases that for one reason or another do not proceed all the way to trial.  There are many reasons why this happens.  Given the nature of the allegations some complainants who are for example in a relationship with their alleged assailant decide that they do not wish to proceed with the allegation.  There are, no doubt, many other reasons why a complainant may withdraw her complaint including the fact that the complaint in fact is false.

The police have frequently been criticised for failing to take rape allegations sufficiently seriously and generally handling such cases with a lack of sympathy and understanding.  It is said that this not only discourages complaints being made in the first place but also results in complaints that are made subsequently being withdrawn.  On other occasions it is alleged that the way in which the police have dealt with a complaint has led to the case being dropped due to lack of apparent sympathy or sensitivity and poor levels of investigation.  The Crown Prosecution Service do not escape from criticism either, it sometimes being alleged that they fail to prosecute cases that ought to be put before a jury because they apply too strict a test as to whether a conviction can reasonably be expected to result.  No doubt there is much room for improvement in the handling of allegations of rape from the moment they are first made.

However whatever criticism may be made about the pre-trial process it seems to me to be important not to just lump in the trial process itself as if it was as much to blame for failed prosecutions as whatever may have happened before the trial.  Cases of rape and serious sexual assault involving adult defendants all have to be tried in the Crown Court before a judge and jury.  Research carried out for the Ministry of Justice by Professor Cheryl Thomas and published in 2010 as well as figures which are readily available on the MoJ website show that contrary to the statistics often quoted by anti-rape campaigners the conviction rate in cases of rape and other sexual offences is in line with that for other serious offences tried in the Crown Court and in fact is higher than for offences such as murder and manslaughter. Given that many of these cases involve one person’s word against another, where it is particularly difficult for a jury to be sure of guilt, these figures strike me as, if anything, surprisingly high.  On no rational basis can the conviction rate in such cases before the Crown Court be described as low, let alone anything like the region of 6.5%.

This raises an issue as to why anti-rape campaigners continue to bandy about a figure that is so far removed from the truth.  Assuming such people have actually checked the real figures rather than just continued to peddle myths it is hard to avoid the conclusion that these people wish the public to believe that what happens at court helps to contribute to the figure of 6.5%.  From this I assume further that such people consider that the trial process itself remains fundamentally unfair to complainants in cases of rape and other sexual assault.  The reality strongly refutes that suggestion.  In addition to anonymity afforded to complainants there are other important measures that have been put in place to assist complainants to give evidence.

First of all such witnesses do not need to come into court to give evidence.  If they choose to do so they can give evidence by means of a pre-recorded video interview with cross-examination then taking place over a television link.  They do not therefore need to see the accused person at any time whilst giving evidence nor do they have to stand in front of a courtroom full of people watching them.  If they choose to give evidence before the jury in court itself they can be screened from the accused so that again they do not come face to face with the accused.

The second claim made in Ms Longstaff’s article is that “the rape victim’s character remains fair game for defence barristers.  The victim has no one to defend her from the most intimate questioning.”  I won’t dwell on the use of the word “victim” with its connotation that anyone who claims to have been raped must be telling the truth.  Sadly experience shows that some complaints are malicious and false.   But it is wrong and very misleading to claim that complainants on such cases are “fair game” or that they “have no one to defend them.”   The implication is that the defence barrister can ask any old question which is designed to humiliate and intimidate the witness without reserve.    Whilst that may have been the case many years ago it is simply untrue of modern rape trials unless the judge isn’t doing his or her job properly.   Nowadays there is substantial protection afforded to a complainant by section 41 of the Youth Justice & Criminal Evidence Act 1999.  This was specifically designed to prevent the old fashioned and quite inappropriate cross-examination of a complainant that used to take place in which the woman’s choice of dress and even underwear could be questioned as a means of inviting the jury to conclude that the woman in question was simply a tart dressing up to pull a man and ready and willing to engage in sex with any stranger who fancied her.

As originally interpreted however the section even appeared to rule out questions to establish that the accused and the complainant were in a relationship, something that most people might think could be very relevant to the issue of whether the complainant was consenting to sex.  That was so absurd that back in 2000 the House of Lords had to re-interpret the wording of section 41 in order to prevent the trial being unfair to the accused – see R.v. A (No.2) [2001] 2 Cr. App. R. 351 HL.    But even today section 41 is regularly used by judges to prevent the defence from asking all manner of questions unless firstly they are relevant to an issue in the case and secondly they do not seek to humiliate or simply embarrass the complainant.

Far from the complainant just being a witness, the judge as well as prosecuting counsel is under a duty to ensure that the complainant is not treated unfairly in cross-examination and to ensure that any questions do not infringe the terms of section 41.  Provided therefore that the barristers and the judge do their jobs properly a complainant will not be “fair game” and can give evidence knowing that any questions asked have to be relevant.    Most people accept that as in any other case so in rape and similar cases the allegations made have to be challenged.   There can be no question in any legal system worthy of the name of simply working on the assumption that the complaint is automatically true.   But given that the legal system has to allow for such challenge I would suggest that the system has gone as far as it can to ensure that a complainant has the opportunity to give evidence free from harassment and that in so doing whilst their account may well be challenged in robust terms they will not be subjected to improper questioning the purpose of which seem to be simply to embarrass the witness.

If more can reasonably be done to facilitate a complainant giving evidence I am sure the criminal justice system would be willing to listen.  It is important however to remember that the system of trial by jury usually involves a dispute to what happened and with what motive or intention it was done and that involves challenges to the truthfulness of the account given by the complainant.  That applies just as much to allegations of rape as it does to allegations of robbery of physical assault.

 By Mark George Q.C.

Mark is a barrister at Garden Court North Chambers, Manchester.

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14 thoughts on “Anonymity for rape accused and dispelling rape myths – Mark George Q.C.

  1. diane pringle

    You question the 6.5% figure, but your argument shows that this figure is indeed correct. No “anti-rape” organisation has said why this figure is as low, you have merely pointed out why the figure is low.

    Men who rape do so, in the main, for power. Giving them anonymity just increases that power. Maybe consider the pain and distress a rape victim goes through. That by far exceeds anything a man accused of rape goes through.

    Rape victims are told they won’t be believed. By giving the accused anonymity you are perpetuating that claim. The number of false rape claims is so low that when it’s proven it still makes newspaper headlines, rape is so common now that it doesn’t!

  2. Kirstin Beswick

    Allowing the complainant anonymity in all cases perpetuates the idea that being raped is something to be ashamed of. Clearly it is not. Raping someone is something to be ashamed of. Hence why anonymity for the defendant is perhaps more justified.

    Whenever this debate raises its head everyone seems to forget that we do not have to have all or nothing. Why not allow both parties anonymity up to PCMH, with the court considering the matter as party of the case management at that point? If it is the sport of case where other victims are likely to come forward then he loses his anonymity. If she doesn’t feel able to give evidence without it then its a special measure.

    And in response to the claim that defendants’ anonymity gives rapists more power, anonymity only lasts as far as conviction. If he’s acquitted then he wasn’t a rapist and if he’s convicted his name should be proclaimed from the rooftops.

    I’d like to see some research being done to see what effect having anonymity actually has on victims coming forward in this day and age. I don’t suggest we dispel complainant anonymity before that research is done. But if there is any risk that leaving that anonymity in place perpetuates the myth that if you are raped it is somehow your own fault then it needs removing. Being raped is not something anyone should be ashamed of. Ever.

    Kirstin Beswick
    Central Chambers, Manchester
    and Northpod Law @northpodlaw

  3. sisterhooduk

    Being raped is treated as though it IS something to be ashamed of not because of the anonymity but the intimacy of the violation. The whole world might get to find out about your entire sexual history, even though it has no relevance to the fact that you were raped. Then there will be the supporters of the rapist and the rape apologists who, will never believe “such a nice man” could ever do such a thing therefore the victim must be lying and he’s been wrongly convicted/accused. Further since when does acquitted mean that a rapist is not a rapist. It means unproven (aka got away with it) does mean he didn’t do it.

  4. Andrew

    Acquittal does not mean “got away with it” in rape any more than it does in any other case. It means “not proved beyond reasonable doubt” – as you well know.

    Of course the people who know the defendant will often believe he is innocent whatever the jury say; and the people who know the complainant will believe he is guilty, whatever the jury say; that’s human nature.

    At the moment the world does not get to hear the complainant’s sexual history, even to the extent that it comes out in court – only the handful of people present know who she is.

    The truth is that all defendants should be anonymous unless and until convicted. It works in France where the press call them M. A or Mme B. Of course there might have to be exceptional cases where that was waived as there are in sexual cases here. But of course the press, to whom the criminal courts are a source of free sensational copy, does not like the idea!

    1. sisterhooduk

      I well know that Kirk Reid who terrorised 70+ women with sexual offences spanning a 20 year period was acquitted of a sexual offence in court after which he went on to commit the 70+ other ones that he was finally caught and jailed for. Tell me how that isn’t a more apt description of “getting away with it”. Dress it up and jargonise it all you want. He got away with it. Ask his victim and all those that didn’t come forward. And for the avoidance of doubt I do not for one minute believe that he didn’t do it. Why should someone like that get anonymity at any stage of the process.

    1. Dan Bunting

      I dot think anyone is saying its easy, just less traumatic than it was 30 years ago.

      Thanks for the link. Interesting article. I’m not sure how we can reform the system without completely changing our legal system.

      One thing is that it seems that being accused of lying was the thing that Ms Moran found the hardest. We could change that in a relatively easy way by relieving the defence of the obligation to ‘put their case’. I think that I would support that.

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  6. angel

    Do you even know anyone who has been falsely accused of rape? Do you have any idea of the consequences for the accused and his family as a result of a false allegation of rape? I am sick to the back teeth of hearing about so-called rape apologists – I have personally experienced the consequences of both sides of this particular coin and it turns my stomach that the general attitide seems to be ‘who cares’ if someone is falsely accused because the number is so miniscule compared to the number of rapes that occur.. WELL I CARE!! It is an afront to all victims of rape/sexual assault to say that false allegations don’t matter as much as it is to the men who are falsely accused. It is bad enough that for years rape victims have been easily ignored, accused of lying, dismissed as attention seekers or made to feel like they are responsible for what happened without tarred with the same brush as those who make false accusations. I for one firmly believe that false allegations happen more than any statistical evidence provides for the problem is that no one really wants to believe that anyone would go so far as to pretend they were the victim of such a vile attack. As far as I am concerned one false allegation is one allegation too many.

    1. Jo

      A false allegation is only ever recorded as such IF the police & CPS decide that there is sufficient evidence to prosecute the accuser. Only following a prosecution of a false allegation does that case become a statistic recorded accordingly hence why the general public believe false allegations of rape are rare. The figures are grossly manipulated to make every single one of us believe false allegations are few & far between which is absolute rubbish.
      As i know from personal experience there are grave misconceptions that the CPS are reluctant to prosecute following an allegation being made, what i have noticed since the mass hysteria in 2012 is more and more innocent people are being pursued and are being brought to trial when there is clearly insufficient evidence to prosecute and absolutely no possible way of gaining a conviction.

      Evidence proving the allegations did not occur are ignored and discounted early on in the investigation stage more often than not by a corrupt officer whose only interest is to convict the innocent person regardless of the truth. You might ask me how do i know about these things and how i can indeed state that these sorts of practices happen to us ordinary folk?
      My son at only 17 years old was the victim of a wholly false allegation of rape, he was removed from his family home upon arrest, made to live independently away from his loving family (which my husband and i had to pay for) for nearly 2 years all on the word of a person who had an axle to grind.
      I believed like many of you do that the police are meant to investigate an allegation regardless of its clarity or substance, collecting information impartially whether it leads towards a conviction or away right? NO this is not the way our case was handled, my son was guilty from the outset, a case was built against him by an officer who was hell bent on a conviction.
      My son’s name was printed in the local rag upon being charged (11 mths after arrest) at only 18 years old he was having to live independently and was now terrified of vigilantes targeting him and rightly so. He received facebook messages calling him the most dreadful of names and was scared for his life. My husband and i felt compelled to purchase CCTV and a burglar alarm in order that he felt safer in an environment he was forced to live in.

      It was only following the trial commenced and being afforded a prosecutor who was interested in the truth and not a numbers game did this sorry affair stop. The police had not investigated the case and had gone out of their way to try and cover up the mistakes that had been made time and time again in the case. The prosecutor was fair and in the interest of justice stopped the case prior to jury being sworn in claiming in open court ‘the complainant is not truthful and as such i wish to withdraw from the case’

      At last a person who was indeed intending on prosecuting my innocent son had stepped up to the mark and had seen the case for what it really was – pure lies.
      The crown offered no evidence in the case and we were sent home to try and get on with our lives as best we could. How can we forget about the grave injustice that had been inflicted on my family? How can we ever move forward when the justice system has let us down so very badly? Why did we have to fund a specialist solicitor and barrister costing nearly £52k for an allegation that was shown to be false from day 1?

      What is even worse is that that CPS seem hell bent on bringing all cases to trial when in OCT 2012 the government took away the ability of the accused to recover their costs associated with a prosecution following acquittal. If the CPS wish to bring cases to trial then they in turn also need to made accountable when it is proven the same case should not have ever entered the court room.

      It is these false allegations that every day take the unacknowledged from those who have suffered and those who are the true victims of this awful crime.

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  8. goggzilla

    What Diane Pringle and many others omit is not just the moral justification for anonymity for rape trial defendants but legally the current UK legislation abrogates Art 8 & 14 of ECHR.

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