Should the accused be granted anonymity in rape trials?
The argument in its favour is a deceptively simple one. What is sauce for the goose ought to be sauce for the gander. As the accuser is granted anonymity, surely equality of arms requires the accused be given the same? Surely it is unfair to only give one side to the dispute this special treatment? The unjustified reputational damage and emotional distress to someone accused, but acquitted, of rape may be very serious. Why permit someone to inflict such harm behind the shield of anonymity?
The above argument is quite wrong. It involves an easy and obvious mistake to spot about the nature of a criminal trial.
In a civil action the dispute is between two parties, the plaintiff (nowadays called a claimant in England for no very good reason) and the defendant. Basic fairness between the two means that they should have “equality of arms”. This means that each is treated in the same way, and neither is placed at a disadvantage in putting their case compared to their opponent. Rape is a tort, not just a crime. The victim can bring a civil action for battery and claim damages. In such an action no anonymity protection does or should apply.
A criminal trial is quite different. The defendant is accused of committing a public wrong. This is most obvious where that wrong has no identifiable victim (eg insider trading). The state is acting as prosecutor for a wrong in relation to the society in which we live. In a rape case the accuser is not the other party to the action, but a witness just like any other witness.
Now rape may be unusual because the trial may feel to the defendant like a civil action. This is for the same reason that it is often hard to get a conviction in rape cases. Primarily the evidence may take the form of the testimony of the accuser and of the accused. There may be other circumstantial evidence that is relevant, but they will ordinarily be the only direct witnesses of what occurred. Because it may become one person’s word against another, the trial may feel like a dispute between the two persons, rather than between accused and society. This feeling is, however, just a mistake.
We could hold all criminal trials in secret. There are many good reasons why we do not, including:
-justice must be seen to be done to maintain society’s confidence in the criminal justice system (which despite everything is still high in the UK).
-holding the trial in public may encourage other witnesses to come forward
-holding the trial in public ensures that all the parties (judges, counsel) maintain the highest standards
-a public trial may disclose that the accused has committed other similar offences for which he should be prosecuted
and so on.
Why then is the accuser in a rape trial granted anonymity? Two reasons are commonly given. The first is the emotional distress of giving evidence in public. For most of us it would be deeply distressing to have to go through the process of reliving the events in a public court, and many may wrongly feel that there is a stigma attached to having been the victim of rape. However, alone I don’t think this can be a sufficient reason to differentiate rape cases from others. There are other crimes (for example being the victim of an assault inflicting grievous bodily harm) where it may be distressing to have to give evidence. The second and more persuasive argument is the public’s interest in encouraging victims to come forward and give evidence. It is hard to obtain rape convictions. We need to ensure that any barrier to victims coming forward and giving evidence is removed. The anonymity is not there for the protection of this particular person, but there to serve the public’s interest.
It is true that an accused may too suffer emotional trauma as a result of standing trial, but this is true of anyone accused of a criminal offence and does not distinguish this class of defendant from any other. The public policy reason for the anonymity of rape complainants in criminal trials does not apply to the accused.
We should deal with those who make false rape accusations in the same way as any other person who makes a false allegation of a criminal offence: they commit the offence of perverting the course of justice (again, a wrong to society). There is no good reason for giving the accused anonymity, anymore than in any other criminal trial.