Soapbox time!
Anonymity in rape cases. Boy, that's a strange issue. The government has recently clarified it's proposal to attempt to reinstate this measure by limiting it until the accused has been formally charged. This is not enough for women's groups, who point out that no such similar provision has been proposed for other serious crimes.
The problem is, rape isn't like other serious crimes, and certainly isn't treated like it in law. The vast majority of rapes are carried out by someone the victim knows. This means that when they come forward to report a crime, they are not saying "someone raped me", they are saying "he raped me". I've always found that a difficult concept to understand in terms of law. On the one hand, the suspect is presumed innocent until proven guilty. But in the majority of cases, the question isn't about whether sex took place or not, or who was involved, but whether consent was given. So while in a straight-forward assault charge a barrister may argue that her client was not present, and the victim was assaulted by someone else, they rarely dispute the crime's existence. The victim's word, and the physical evidence, are enough for a crime to have been assumed to have happened, and the investigation is about identifying the culprit.
In a rape case, the sex is often not disputed. It is consent that is argued over. The defence often does not rest on, "it wasn't my client", but, rather, "no crime took place". In assuming the suspect innocent, then, the law calls into question whether a crime was ever committed. The onus is then on the victim to prove that a crime, rather than sex, took place.
Let's step back from that for a second. To a legislator looking at the figures, anonymity for those accused of rape makes sense from a numbers perspective: here is a crime with only a 6% conviction rate. There are two possibilities: either the current law makes it practically impossible to prosecute this crime successfully, or too many innocent people are being accused unnecessarily. So from a rights perspective, 94% of those accused were never convicted (most never brought to trial), and therefore protecting them from the stigma of the accusation is important. Add to that government's general helplessness in the face of conviction statistics: we know the law doesn't work but don't know how to fix it (and in many cases don't have the power). Only about 10% or so of reported rapes are 'stranger rapes'. Let's assume that about half of those got a conviction (in reality they are much more likely to do so than non-stranger rapes). That accounts for 5% of the total number reported as "stranger rapes = solved". A further 5% are "stranger rapes = unsolved" and 1% are "non-stranger rapes = convicted". The remaining 89% of reported non-stranger rapes are therefore, by the assumption that "non-conviction=no crime has been committed", not crimes at all! So why would any legislator work on 'creating' more crimes, when they can work on 'protecting' more 'innocent people accused unjustly'?
I understand why the govt is reacting the way they are. I also think they are missing the point. The laws surrounding rape and sexual assault need to be reviewed so that there is no longer the default assumption of an unjust accusation and no crime committed. The CPS currently has an impossible job in having to both prove the guilt of the defendent and to prove that a crime has been committed each and every time. The figures lie to us, and the law lies to us. Both need to be changed before we can start thinking about anonymity for the accused in any sort of crime.
This entry was originally posted at DreamWidth. There are
comments there. Comments are welcome at either journal.
The problem is, rape isn't like other serious crimes, and certainly isn't treated like it in law. The vast majority of rapes are carried out by someone the victim knows. This means that when they come forward to report a crime, they are not saying "someone raped me", they are saying "he raped me". I've always found that a difficult concept to understand in terms of law. On the one hand, the suspect is presumed innocent until proven guilty. But in the majority of cases, the question isn't about whether sex took place or not, or who was involved, but whether consent was given. So while in a straight-forward assault charge a barrister may argue that her client was not present, and the victim was assaulted by someone else, they rarely dispute the crime's existence. The victim's word, and the physical evidence, are enough for a crime to have been assumed to have happened, and the investigation is about identifying the culprit.
In a rape case, the sex is often not disputed. It is consent that is argued over. The defence often does not rest on, "it wasn't my client", but, rather, "no crime took place". In assuming the suspect innocent, then, the law calls into question whether a crime was ever committed. The onus is then on the victim to prove that a crime, rather than sex, took place.
Let's step back from that for a second. To a legislator looking at the figures, anonymity for those accused of rape makes sense from a numbers perspective: here is a crime with only a 6% conviction rate. There are two possibilities: either the current law makes it practically impossible to prosecute this crime successfully, or too many innocent people are being accused unnecessarily. So from a rights perspective, 94% of those accused were never convicted (most never brought to trial), and therefore protecting them from the stigma of the accusation is important. Add to that government's general helplessness in the face of conviction statistics: we know the law doesn't work but don't know how to fix it (and in many cases don't have the power). Only about 10% or so of reported rapes are 'stranger rapes'. Let's assume that about half of those got a conviction (in reality they are much more likely to do so than non-stranger rapes). That accounts for 5% of the total number reported as "stranger rapes = solved". A further 5% are "stranger rapes = unsolved" and 1% are "non-stranger rapes = convicted". The remaining 89% of reported non-stranger rapes are therefore, by the assumption that "non-conviction=no crime has been committed", not crimes at all! So why would any legislator work on 'creating' more crimes, when they can work on 'protecting' more 'innocent people accused unjustly'?
I understand why the govt is reacting the way they are. I also think they are missing the point. The laws surrounding rape and sexual assault need to be reviewed so that there is no longer the default assumption of an unjust accusation and no crime committed. The CPS currently has an impossible job in having to both prove the guilt of the defendent and to prove that a crime has been committed each and every time. The figures lie to us, and the law lies to us. Both need to be changed before we can start thinking about anonymity for the accused in any sort of crime.
This entry was originally posted at DreamWidth. There are
comments there. Comments are welcome at either journal.