Wednesday 27 March 2019

Rape defendants' anonymity is not in the public interest

Colette Brown

The anonymity afforded to those accused of rape in Ireland is not in the public interest and the policy should be reviewed.

Yesterday, publicist Max Clifford was sentenced to eight years in prison in the UK for a string of sexual assaults dating from 30 years ago.

His was the first conviction from Operation Yewtree, the investigation prompted by abuse claims made against Jimmy Savile.

Crucial to the conviction in the Clifford case was the fact that he was named in the media when allegations first surfaced.

The decision of one brave complainant to come forward emboldened other women to go the police.

"The prosecution was built with evidence demonstrating a pattern of behaviour where unconnected victims told of strikingly similar experiences over a number of years," said DPP Alison Saunders.

Commenting on the severity of Clifford's crimes, Judge Anthony Leonard said some of the assaults would be considered rape under current legislation.

It is unlikely that a similar case could be built in Ireland today because of the inability of the media to name those accused of rape.

Currently, those charged with sexual assault can be named while those charged with rape cannot, until they are convicted. In reality, nearly 60pc of those convicted are never named.

When the law affording rape defendants anonymity was introduced in Ireland, it was expressly done because of the fear of false allegations being made.

"It was considered that in the case of an allegation of rape an unscrupulous complainant could hide behind the anonymity provision while destroying the character of an innocent accused person if anonymity were not also granted to the accused unless and until found guilty," according to a Department of Justice report.

This implicitly presupposes that a higher number of false allegations are made in rape cases than in other criminal trials. There is no evidence to support this contention.

A recent UK study found that "concrete evidence about the extent of false allegations is limited and confused and what exists is based on perceptions of practitioners and research involving small samples".

Oftentimes, the 'no-criming' of rape allegations, when the DPP decides there is insufficient evidence to prosecute a case, is erroneously conflated with false allegations.

While no concrete evidence exists to suggest that a disproportionate number of rape allegations are false, what we do know is that there is a high rate of recidivism among sexual offenders.

One Australian study, of those arrested in connection with sexual crimes in 2001, found that 14pc had previously been arrested for similar offences.

More recently, a 2010 UK study found that 48pc of defendants convicted of rape in 2009 were sentenced for two or more rapes.

Of those found guilty, 10pc had at least one previous conviction for any sexual offence and 3pc had a previous rape conviction. In the US, a multitude of studies of self-reported offending has revealed much higher rates of recidivism.

When granted immunity from further prosecution, offenders have confessed to between five and 12 previous rapes against multiple victims.

In that context, the prosecution of rape cases in Ireland, the only common law country in the world that preserves a defendant's anonymity, is more difficult because evidence that could link one rape to another, is never discovered.

This means that multiple-victim cases are extremely rare because of the shroud of secrecy that envelops trials.

Another common reason put forward to defend the current system is that the stigma from a rape accusation merits the protection of defendants' identities until they are convicted.

Why then is anonymity not afforded to those accused of murder, or terrorism or a multitude of other serious offences? If those accused of murder can be named, and have their reputations vindicated with an acquittal, then why are those accused of rape treated differently?

The arbitrary distinction made between sexual assault and rape further undermines the current law.

Those charged with very serious sexual assaults, which can include a high degree of violence, are routinely named while those charged with rape are not.

The anonymity afforded to victims of sexual offences is clearly in the public interest because it encourages victims of a very under-reported crime to come forward and give evidence in open court.

It is difficult to see how the anonymity afforded to defendants serves any commensurate public interest. In fact, it could be argued that it undermines it.

It adds to a culture in which rape victims are presumed to be lying or less trustworthy than those who report other crimes; makes it less likely that witnesses will come forward and also makes it harder for gardai to find evidence of multiple offending.

Irish Independent

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