Friday, 28 May 2010

Countering bad arguments for defendant anonymity

So, this proposal to give anonymity to defendants in rape trials is picking up a bunch of bad arguments. Since, no doubt, they'll come up again if this ever gets to the legislative stage, I'm writing them down now for future reference. I'll keep editing this post to add more arguments as needed.

Meanwhile, a few other possible campaign actions:

  • In comments, gorilerof3b points out this petition to the Justice Secretary to drop the proposal.
  • From the petition page, there's this Early Day Motion (Parliament's internal equivalent of a petition). So far (as of 28 May) it has 52 Labour signatories and 1 Plaid Cymru one. If your MP isn't on that list, encourage them to sign up.

    Looking at who has signed it 38 of the 53 signatories are women, or 72%. In the Commons as a whole, 22% of MPs (143 of 650) are women. So, the motion has so far been signed by just over 26% of the women in the Commons (46% of the Labour women), and by just under 3% of the men.

    So, yes, let's file this proposal under "ones that a Parliament with decent gender balance would probably never have even considered".

  • Another post, and an excellent letter, on this, by Sian and Crooked Rib.

On to the arguments. (Last edit: 9 July)

[trigger warning]

The victims get anonymity, so why shouldn't the defendant?

Short answer: Because the defendant is suspected of a crime and the victim isn't.

While there's obviously a temptation to say that it's only fair that the defendant should have the same right to anonymity - a temptation that the 1976 Labour government succumbed to - it makes no sense.

Suspects for a crime are generally charged with the crime many months before their trial. This is unavoidable - we have a busy justice system, and both sides need time to prepare their cases. In that time, it is possible that the suspect, rather than face trial, will go into hiding. So, we have bail arrangements, and suspects who can't put down a satisfactory bond or who breach their bail terms are detained in prison until the trial.

No-one, so far as I know, is arguing that we should either extend the same treatment to witnesses, or arguing that because we allow witnesses to go about their lives and trust them to appear when called at the trial we should extend the same trust to all suspects. The bail system is widely seen as fair and reasonable.1

There may be reasons why defendants in a particular trial or class of trials should be given anonymity, but that witnesses in the same trials are anonymous is not one of them. There is no principle anywhere else in the system that defendants and witnesses/victims should be treated identically.

However, this line of argument doesn't even hold together if you believe that while in general defendant and victim rights should be different there is nevertheless a case for them to be the same regarding media anonymity.

If that was the case, the victims in cases where the defendants currently get anonymity (an over-18 victim of a non-sexual crime allegedly committed by an under-18 defendant, for instance) should also be given anonymity. There's no demand for this, and I've never seen anyone anywhere explicitly suggest it, and it makes no sense whatsoever, but that's the consequence of a "victims and defendants should have the same anonymity" argument.

1 It has problems with racism and classism, yes, so it's not actually as reasonable as it is perceived, but those are largely problems with the implementation rather than the principle.

Anonymity should be for defendants in all crimes (or all "serious" crimes)

I have to say, I would be far more sympathetic to this argument if I ever saw it anywhere else. It only seems to come out, though, as part of sequences like this:

Person A: We should have anonymity for defendants in rape trials.

Person B: Why? Defendants on charges of terrorism, or child abuse, or murder, or other horrific crimes don't get to be anonymous, despite the potential for their reputation to be damaged also being very large.

Person C: I'd be in favour of anonymity for defendants of all (serious) crimes.

What I don't see is Person C saying this in any other contexts. If there were really masses of people holding this opinion, I'd expect to see some sign of this. I've looked, and I found a lot calling for anonymity for rape defendants specifically, but only one calling for general anonymity, and while they are on paper for all defendants, the vast majority of their proposals and case studies relate to rape and other sexual offences, so I don't think it breaks the general pattern. They are massively outnumbered, to put it mildly, by calls only affecting rape defendants.

But, that's not a reason to reject the proposal. The following, however, are - and are also perhaps reasons it's rarely suggested outside this context:

  1. Public trials are generally in the interest of the defendant, since it means that justice can be seen to be done. This is articles 10 and 11 of the Universal Declaration of Human Rights. I don't think many people would be entirely comfortable with a country where suspects were arrested, charged and tried in absolute secrecy - with reporting on this being itself an offence - and only after they had been found guilty and jailed could the whole process be reported on.

    Meanwhile, those who were arrested, charged, tried and later acquitted would have to explicitly waive their anonymity for any lessons regarding the process to be made public. This could cover up a number of abuses of process, or cases of systematic discrimination in the system.

  2. While there are rightly laws that allow defendants anonymity in the cases where revealing their identity might reveal the identity of their victims or other vulnerable people (and these laws are used in rape cases already), extending these as a matter of course to all trials leads to ridiculous situations.

    For example: A major business collapses into bankruptcy. The CEO is arrested on fraud charges and brought to trial. The press cannot usefully report on the trial at all because there is no way to mention even the details of the charges - or perhaps in some cases even the company - without revealing the identity of the defendant. Not all trials would be affected this way, of course, but some high profile ones would.

    If we take the case, for instance, of Bernard Madoff (I know, US rather than UK law, but the principles don't differ in this case), I can't see how you could even report that his pyramid scheme had collapsed without breaking a strict defendant anonymity requirement.

  3. What do the police do if they have a suspect, and want to either find out who they are or gather further evidence? At the moment, they might release CCTV footage, or a photo-fit, or even just a description to the press, in the hope that someone will recognise them and give them additional evidence. How this is reconciled with a requirement not to identify in association with a crime anyone not found guilty of the crime I'm not sure.

    Here's a suspected rapist who had an e-fit of their appearance released recently. It's rare for identifying information to be released by the police pre-charge, but here's a case where it's necessary to do so pre-arrest.

    Conversely, if you allow the police to release a suspect's name (or other strongly identifying information) and the press to report on this for the purposes of evidence gathering, this is really no change from now. Since one argument against defendant anonymity in rape cases is that it may encourage other victims of a serial rapist to come forward, this is going to be a fairly common action by any police force that actually wants to convict rapists.

Innocent until proven guilty! Eleventy!

This isn't used as an argument in itself, as such, but as a statement to back up other arguments. It's being badly misused.

"Innocent until proven guilty" means that where someone is suspected of a crime, the burden of proof is on the prosecution, who has to prove to the satisfaction of the court that the accused did in fact commit the crime. If they cannot, they are acquitted and freed as there is a presumption of innocence.

It is in contrast to the system of prosecution used - for instance in Revolutionary France - in which suspects are presumed to be guilty unless they can provide satisfactory evidence of their innocence, and is a definite good thing and part of the universal declaration of human rights.

It does not, however, mean that people who are suspected of a crime must be treated identically by the justice system to other presumably innocent people who are not suspected of that crime, because that would be absurd and make it impossible to try people at all.

There are lots of false allegations of rape

There have been many studies done that show, firstly, that there aren't many false allegations made, and that secondly, that most of the false allegations that are made do not name a perpetrator. The number that reach the charges/court stage is incredibly small indeed. Before this stage suspects usually have anonymity in practice anyway, because very few rape cases reach press attention in the pre-charge stage. ACPO guidance from 2000 recommends that for all crimes, in general, suspects should not be named by the police pre-charge.

Actually arguing on that basis is rather pointless, though, because there are also studies (ones, admittedly, with a methodology that it would be generous to describe as extremely flawed) that show the opposite. Without a great amount of time, a strong knowledge of statistics and survey design, and often expensive access to the original papers to look at the methodology, it's difficult to put that argument together.

There is, however, a very simple argument for why the rate must be low (though it doesn't say exactly how low).

According to the British Crime Survey (volume 1, table 3.11), 0.2% of adults aged 16 to 59 were victims of rape at least once in the previous 12 months. There were about 36 million adults of those ages in that year, so that's at least 72,000 rapes of adults of those ages (but this is an absolute minimum, as it doesn't cover multiple attacks on the same person in the same year).

This Home Office study gives an estimate for repeat victimisation in Figure 5.2 and the surrounding text. It references another study suggesting an average of 2.9 rapes per year, or about 210,000 a year nationally.

Only about 8,000 rapes of adults were reported to the police, which is around 4% of the total (less, in fact, since some of the rapes reported will have been of victims aged 60 or over).

There are two things to note here:

  1. Firstly, anyone claiming a false accusation rate above 4% is claiming that it is more likely that a particular report of rape will be false than it is that a particular rape will be reported. While these are not directly comparable reporting rates (the numerator of one is the denominator of the other), it still seems highly unlikely.
  2. Secondly, if the false accusation rate is really 80% (or any of the other ridiculously high figures claimed), that means that 80% of those 8,000 reports are false. That means that only 1,600 are true, which brings the reporting rate for the rapes that did occur down from 4% to less than 1%. It's already a low enough figure to be extremely worrying - and the lower it gets, the less case there is for defendant anonymity (since that has been shown to be harmful to reporting rates).

Anonymity would better protect the reputations of people who were acquitted

There's lots of talk about how people accused of rape can find themselves shunned by some of their social circle even if acquitted. More likely is that the victims will find themselves shunned or disbelieved if they ever say anything, while people will make all sorts of excuses for the perpetrator's behaviour, but let's assume, just for the sake of demolishing this particular argument for defendant anonymity, that people who are accused of rape, and either not charged or acquitted, are subjected to shunning (and according to one now-deleted and implausible comment on this post, vigilante attacks) at some noticeable rate.

An anonymity law would not prevent this.

People's reputation with their social circles is largely dependent on informal conversations and gossip. The anonymity law, like the existing one for victims, would prevent the press from reporting on the suspected rapist's identity. It would not prevent the suspected rapist's acquaintances from wondering why exactly he was in trouble with the police, or off to court. If rape was the only crime for which routine anonymity was granted (and I've covered above why blanket anonymity would be a problem), then they'll know he's off to court, they'll know it's confidential what for, and can connect the dots themselves.

This is the way that most people will find out - if they find out at all - that their acquaintances have been charged with rape. This is absolutely impossible to stop within the resources of the law. Very few rape cases are actually reported in the press anywhere, and there are usually particular situations that lead to that - trials collapsing through prosecutorial incompetence, or high profile defendants, or being particularly horrific even for rape (usually involving murder or another form of additional serious violence, and/or by a stranger). The average rape trial doesn't make even the local papers. (Suspects who are not charged, or who are charged but not brought to trial, are even less likely to get press mentions)

So this proposed anonymity law? Not actually much help to most defendants, if that's the particular consequence they're worried about. It might marginally help the tiny minority of defendants who were brought to trial, in situations newsworthy enough to be reported, but not newsworthy enough for their acquittal to also be reported, but that's really not many people, or much help for them.

More on this, analysing the extreme rarity of suicide and attempts by newsworthy defendants and false accusations more generally, in other posts.

The consequences of being accused and then acquitted of rape are more serious than those for other serious crimes

Really? Given people like Polanski, I don't think it's provable that there's a significant reputation loss associated with being a convicted rapist, but for a suspected rapist, let's look at Ian Huntley. His reputation was strong enough to get work in a school despite having been suspected of ten separate sexual offences. This reputational damage doesn't look very severe at all.

Is this more or less than the reputation loss associated with, for instance, a suspected terrorist? Suspected terrorists can be held without charge for a long period of time. Even without formal charges the government can impose control orders and other restrictions that make it clear that you are a suspected terrorist (and if you want your former quality of life back, it requires a lengthy court fight to have them lifted).

No-one is arguing for anonymity for terrorist defendants, though (other than the "well, okay, other serious crimes too" arguments that have suddenly sprung up), least of all the suspected terrorists who in most cases benefit strongly from the trial being public even despite the reputational costs.

Things you just don't hear human rights organisations saying: "I think it's good that the Guantanamo detainees are being tried in secret military tribunals rather than the public courts - think of how much better it will be for their reputation if they're acquitted." - public trials are in the declaration of human rights for a reason, and it's because it is generally in the interests of the defendant.

All serious crimes, and a fair number of less serious ones, have the potential for a significant loss of reputation for the suspects. On acquittal, if the terms of the acquittal are in the public record, they have a good way to show that the arguments of the prosecution weren't convincing, or that there was incompetence in the evidence collection and they shouldn't even have been a suspect, or whatever, and most of the loss will only be temporary.

Here's the Prime Minister, defending the necessity of being able to deport suspected terrorists who he freely admits there is insufficient evidence to prosecute. Any argument that an accusation of rape is more serious for the suspect than an accusation of other serious crimes is probably not considering things properly.

Addition in light of details

The government are specifically planning to restrict this to rape, but not the very similar crime of assault by penetration. The two crimes are equally severe, and essentially the only difference is that a penis must be used for rape, but any object or other body part may be used for assault by penetration.

Arguing that being accused of [colloquial] rape-with-a-penis causes significantly more serious reputational damage than [colloquial] rape-with-anything-else is not, I think, an argument based in facts.

It's still not clear whether the separate offence "rape of a child under 13" is going to count, but again I find it unlikely that anyone is arguing that raping young children is viewed less harshly by society than raping adults. At any rate, it's clear that assault of a child under 13 by penetration is not covered.

Several other crimes from the Sexual Offences Act 2003 that meet the colloquial but not legal definition of rape, that include the possibility of life imprisonment, and that have similar public disapproval for those that commit them, are also not included. As well as various forms of sexual assault where the victim is under the age of 132, this includes kidnapping or false imprisonment with intent to commit a sexual offence (even if the sexual offence one intended to commit does not itself have a life sentence, and even if it's not actually committed, incidentally)

So even if you agree that colloquial rape is far worse than other crimes for the accused's reputation (and as I said above, I don't), legal rape is clearly not.

2 This I don't entirely get. Obviously the offences for under-13 and under-16 victims need to be different offences so that the "without consent" line can be excluded. However, I don't understand why a particular sexual criminal activity, when carried out on someone under 13 is liable for life imprisonment, but the same acts carried out on a 14-year old or a 40-year old would only have a maximum sentence of 14 years. That doesn't make a lot of sense - why isn't that also punishable by life imprisonment?

The conviction rate is actually around 58%

This one is technically true, and still a bad basis for an argument favouring defendant anonymity.

The government definition of "conviction rate" is the proportion of trials that end in conviction. The colloquial definition is the proportion of reports that end in conviction (for which I'm not sure there is a name, though the proportion of reports that do not end in conviction is the "attrition rate"). There may be a case for using more precise language - referring to "the proportion of reports that result in a conviction" rather than "the conviction rate", but since even some MPs use the two interchangeably, it's probably not urgent.

Baroness Stern, among others, has suggested that there should be more focus on this figure, and less on the attrition rate.

The bad argument is this: "Since the conviction rate is not too different to that for other crimes, there's therefore no compelling need to make things even better for victims at the expense of potentially innocent defendants."

I think Baroness Stern is wrong. The conviction rate is virtually useless in itself, and campaigners are right to focus on the attrition rate.

The Crown Prosecution Service guidelines state that prosecutors should only proceed with a case if they believe they have a better than even chance of success. It would be highly unusual in this case if the conviction rate (government meaning) was much different to the 58% it currently is - if it were much higher, for such a common crime, it would suggest that prosecutors were failing to take on some potentially winnable cases. If it were much lower it would suggest that prosecutors were getting it wrong and consistently failing to win cases that they should have done.

The attrition rate, on the other hand, lets the problems in earlier stages of the process be highlighted. I've linked to this paper by Kelly, Lovett and Regan before, and it's a detailed look at all stages where cases are lost. The differences by police force - compare Dorset on 1.6% with Cleveland on 18.1% are also instructive regarding how much more could clearly be done.

The attrition rate is also the important one for victims. Victims might, as Baroness Stern suggests, be encouraged by the thought that if their case gets to court, they're more likely than not to find their rapist convicted. Nevertheless, it seems unreasonable, and letting the police and CPS off, to not also highlight that those two organisations often fail to get cases to court.

And with the attrition rate being as bad as it is, there is definitely no case for making things harder for victims and easier for defendants.

Lots of things in the programme for government weren't in either manifesto

The example I've seen of this is that the proposed referendum on Alternative Vote was in neither the Conservative nor the Lib Dem manifesto, and this is true, it wasn't. This is, however, an entirely different sort of example.

The Conservatives want to keep First Past the Post. The Lib Dems want Single Transferable Vote and said so in their manifesto. The resulting policy of the coalition is somewhere between the two.

This policy is not somewhere between the two manifestos, however. Here's the relevant bits of the Conservative manifesto:

We will implement the Prisoners' earnings act 1996 to allow deductions from the earnings of prisoners in properly paid work to be paid into the victims' fund. We will use this fund to deliver up to fifteen new rape crisis centres and give existing rape crisis centres stable, long-term funding. To help stop sexual violence before it occurs, we will ensure that the school curriculum includes teaching young people about sexual consent.

The Lib Dem manifesto didn't mention rape at all.

A compromise between these two would be to only do some of the things suggested in the Conservative manifesto, or to do less of them. Doing something completely different, that just happened to be an obscure Lib Dem policy and a personal aim of some Conservative MPs, is not a compromise between the two manifestos.