Should rape suspects have the right to anonymity, like their accusers? It’s a debate that keeps coming back, because MPs keep resurrecting it. Today it’s the Home Affairs Select Committee, which recommends anonymity for those suspected of a sex offence, unless and until they’re charged.
We’ve been here before more than once since anonymity for rape complainants was recommended in 1975, by a committee chaired by Dame Rose Heilbron – one of the first women silks, the first woman judge at the Old Bailey and then a High Court judge. Heilbron rejected an equivalent anonymity for men accused of rape.
The right comparison, her report said, was not between a rape defendant and his accuser but between him and those accused of other crimes. In spite of that, when MPs debated legislation giving effect to the report, they forced the government to concede anonymity to rape defendants, too.
The issue was looked at again in the 1980s by the Criminal Law Revision Committee, which agreed with what Heilbron had said a decade before. The argument for equality between rape defendants and complainants was not valid, it said, “despite its superficial attractiveness”. Rape, it said, “is but one of many offences where a defendant who is acquitted may nevertheless suffer damage to his reputation”. Even so, when the Thatcher government finally legislated in line with Heilbron’s original recommendations and to remove defendant anonymity, 150 MPs voted to keep it.
More recently, a previous Home Affairs committee in 2003 wanted a limited anonymity restored, to cover suspects not yet charged with a sexual offence. That committee (of which David Cameron was a member) said sex offences fall “within an entirely different order” to other crimes because of the special stigma that attaches to them. Then in 2010, the Coalition tried to restore full defendant anonymity (in spite of that not having been mentioned in either party’s manifesto) before being forced to back down. Now, the eight men and just three women on today’s committee have returned to the idea of limited anonymity, before charge.
It’s worth noticing how lightly MPs have dealt with this over the years. They knew better than Dame Rose Heilbron in the Seventies, and many of them knew better than the Criminal Law Revision Committee in the Eighties. The Coalition knew better than its own manifestos, and the Home Affairs committee knows better today, though it heard from only five witnesses – and spoke to them mainly about police bail, in fact. MPs simply don’t approach this issue with the seriousness it deserves.
Sex offences are not “within an entirely different order” from all other crimes. Many people are wrongly suspected of many things; and many suspicions are devastating in themselves. If the presumption of innocence required rape suspects to be anonymous (it doesn’t) then the same would go for all criminal suspects. That is, to use Dame Rose Heilbron’s reasoning, the right comparison. But either approach would mean a retreat from public justice when everywhere the cry is for more transparency in the law, not less. Do we really want it kept quiet if (as happened late last year) an MP is arrested on suspicion of rape?
Heilbron was right. The Home Affairs committee has got this wrong.
Carl Gardner is a former government lawyer, and writes at headoflegal.com
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