Rape is unlike any other crime

'People often pruriently believe, in the case of both accuser and defendant, that "there's no smoke without fire" '
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The Independent Online

The Director of public prosecutions has waded into muddy waters in suggesting that the defendants in rape cases should be afforded the same anonymity as is accorded to those bringing charges. But while the possibility may appear to offend against all principles of open justice, it is not as outlandish, or as misogynous, as it first appears.

The Director of public prosecutions has waded into muddy waters in suggesting that the defendants in rape cases should be afforded the same anonymity as is accorded to those bringing charges. But while the possibility may appear to offend against all principles of open justice, it is not as outlandish, or as misogynous, as it first appears.

In fact, it is a return to the initial situation, when anonymity was first introduced to rape cases in 1976, and both parties had the right to keep their names out of the public domain. The reason for this was to encourage the reporting of rape to the police, while at the same time calming the then - as now - hysterical belief that "crying rape" is a favourite in every woman's armoury of ways to get over rejection.

The law was changed, in 1988, not as is often reported, because of the campaigns of women's groups, but because of a landmark case in Wiltshire. Police complained that the rape defendant's right to anonymity had stopped them from being able to make a public appeal to catch a suspect. Since this is clearly an important and undesirable hampering of police operations, the law as it stood was changed. It shouldn't have been. What instead should have happened is that the right to solicit evidence from the public should have been granted case by case in circumstances when there was a danger to the public if a suspect was not apprehended.

Was it changed in the best way possible though? Women's groups certainly appear to think so. Ruth Hall, of Women Against Rape, recently told the press: "False rape accusations are rare but receive disproportionate publicity. People wrongly believe that lots of women who claim rape are liars - a misconception that would be reinforced if men accused of sex offences got special rights to anonymity. Of course, it is a terrible ordeal for those wrongly accused. But the same can be said of murder, theft, fraud, or any other serious offence."

This sounds perfectly fair and sensible, and you wouldn't have to be a feminist in order to agree with it. Except that, if all these crimes are the same, then why is the accuser granted anonymity in rape cases?

The exception is made because in cases of rape, the victim is usually terribly ashamed and traumatised. Unlike the victims of theft, fraud, or even murder, the victim is dogged by the idea that people will "think she was asking for it" or will even wonder herself if that was the case. The exception is made because rape is exceptional, a sexual crime that leaves all women vulnerable, and which often is without proof.

These are some of the reasons why women so often fail to report rapes to the police. These are some of the reasons why, even when they do report rapes, so few of them go to court. These are some of the reasons why, once rape cases do come to court, fewer than 10 per cent of them result in a conviction. And these are some of the reasons, too, why we are so prurient about rape. Rape, for the disinterested spectator, is a free-for-all, a whodunnit in which the likelihood is that we'll never really know.

Recently the pop stars Paul Weller and Mick Hucknall have both been splashed over the papers, the allegations of rape made against them reported before they had been charged, let alone convicted. Their sexual histories were splashed all over the papers even though there was, in the event, no need in either case for any evidence to be gathered. In the case of these celebrities, it is the prurience of the press that demands anonymity. But for any small community, unproven accusations have the same results. People pruriently believe, in the case of accuser and defendant, that "there's no smoke without fire".

Yet while granting anonymity to men accused of rape is not likely to make any difference at all to the conviction rate for rape, there are other measures which could. Details of Lord Justice Auld's report into the retooling of the judicial process have already been leaked. It is suggested that they could include the proposal that juries be allowed to hear details of a defendant's previous convictions. This proposal is bound to be controversial, but in rape cases I believe changes should go even further than this.

In a recent rape case, an appeal was made to the House of Lords that five women should be allowed to give evidence against 39-year-old Nicholas Edwards. The appeal was upheld and all five women were allowed in court to tell how they had made allegations against Edwards in the past which had not resulted in convictions. This evidence helped establish that Edwards had used the same defence to similar rape charges on a number of occasions. This time, he was found guilty of rape and jailed for life. Without the evidence of these five other women, he would most probably have been able to convince a jury once again that the case against him was not proven.

In 1998, Leslie Bailey was cleared of repeatedly raping a 14-year-old girl. It later transpired that he'd already received six previous convictions for rape, one for attempted rape and three of indecent assault. John Halliday, a Home Office official, is looking into the idea that the severity of sentences should not reflect only the seriousness of the offence at issue. At present, the courts tend to disregard previous convictions, but in Mr Bailey's case, it would seem that this lack of prejudice has worked too much in his favour. Why, after 10 sexual offences, was he out on the street to get away with more?

So while I believe that both men and women should be granted anonymity in rape cases, I also think that there should be other exceptions for this and other sex crimes. Even if a woman's accusation goes no further than being reported, then it should be logged. This would mean that even if the victim herself believes she cannot prove a violation against her, the incentive to report the crime is greater. If the man she accuses has been reported before, then her evidence against him is increased. If he has not been reported before, she will know that at some time in the future, it is possible that her evidence will still be heard.

For many people, such moves would go against the grain of liberal justice. But the fact is that the crime of rape is almost uniquely unsuited to trial by jury as it presently stands. And tinkering is simply not making an impact. The Government is eager to make it easier for rape charges to lead to convictions. But its legislation, introduced last year, which forbids a defendant from quizzing an alleged victim about her sexual history is already being appealed against.

Mohammed Anwar, accused of the rape of a 25-year-old teacher, is appealing against the ban under article six of the European Convention on Human Rights. This right to protection from cross-examination of victims, was fought for long and hard by pressure groups. But this case, which has derailed many other rape trials, is already threatening to stop the right in its tracks. While the victim says she was attacked on a towpath - Mr Anwar says the meeting was part of an ongoing sexual relationship, and that unless his accuser can be questioned about their previous liaisons, then his right to a fair trial has been contravened. There is every likelihood that his appeal will be upheld, and a long fought-for change in the procedure of rape trials damaged.

In the meantime, our thinking on the reality of rape trials is clouded by the enactment of over-simple messages in fatuous popular television like this week's The Innocent. Some more radical thinking is needed, before our ability to bring sex offenders to justice is properly strengthened.