The new Conservative-Liberal coalition in England made a surprise announcement recently stating that anyone charged with rape will soon be granted immediate anonymity.
The change was inspired by a concern that false allegations of rape inextricably destroy peoples' lives. While the details of the current proposal are sparse, it is presumed that the ban shielding the identity of the defendant would be lifted upon conviction.
The dramatic change has been greeted with alarm in some quarters. Ruth Hall, a spokeswoman for Women against Rape, indicated that the proposal would inhibit women from coming forward to report rapes by advancing the idea that many allegations are false. However, every complainant in a rape case receives automatic anonymity and by the same skewed logic juries should be swayed to accept the truth of the allegations.
Another criticism leveled at the reform is that it allows men accused of rape to be shielded with a special protection that isn't granted for other crimes, including murder (Guardian, May 20). In response, Minette Marrin pointed out in The Sunday Times (May 23) that the crime of rape is unique ''as it is almost impossible for a man to survive an accusation of rape without a stain on his name: there will be whispers and worse for the rest of his life.''
The argument that the ordeal of a false rape charge is hardly exceptional can't be easily dismissed. What of other forms of sexual assault, for example, or a pernicious charge of child pornography? What of a fraud alleged to be perpetrated against a vulnerable group such as the elderly or the infirm? There doesn't appear to be a compelling reason to distinguish the enduring stigma that might follow a defendant acquitted of these highly emotionally-charged types of offences.
In Canada, anonymity is granted by law to young persons under the age of 18 charged with a crime. A similar protection is also extended to every complainant in any form of sexual assault case. Rather than seek to cloak the adult accused's identity with anonymity, bans of publication are available for the bail hearing and preliminary inquiry to afford some limited protection against stigmatization. By this process, the only evidence in the public domain is the testimony brought at trial. Of course, in some instances, there will be a blast of publicity surrounding the initial arrest and signaling of charges that circumvents the goal of procedural fairness that publication bans seek to promote.
The issue of granting a rape defendant anonymity poses no simple or obvious solution. The radical English experiment will be worthy of some careful study in the future to assess its viability in our country.
Email: skurka@crimlaw.org
