Friday, 9 July 2010

The big anonymity debate in Parliament

[trigger warning]

The big debate on rape defendant anonymity was yesterday. The transcript is now out. There's still time to sign the petition or write to your MP, among other actions.

I've updated both the timeline and the common bad arguments post.

On the debate itself...

There's been a lot written about this debate elsewhere, including

Simon Hughes MP (Lib Dem, Bermondsey & Old Southwark) made various interventions such as this one, suggesting that it was the means and method rather than the name that would be useful in catching serial rapists.

Does the hon. Lady agree that, as the police say, it is often not the name or physical identity or picture of the suspect that brings people forward but the knowledge of the method of operation? I speak as the MP of John Worboys, who operated as a cab driver. The knowledge that the offender was a cab driver was enough to encourage others to come forward. It could be knowledge that the person committing the offence usually climbs through a window at 1 o'clock in the morning. The point is that is often the operation, not identity, that is important.

For "stranger" rapists this is probably true. For the more common acquaintance rapists, Lisak and Miller found that the methods used were so similar that it wouldn't really help. If police released a report that someone was behaving in a manner of the typical serial predators they described, then either thousands of victims would come forward, naming a wide range of rapists who vaguely matched that description, or more likely none would.

I don't doubt that it's a valuable method for catching certain serial rapists, but as the only available method it might not be so useful.

Aidan Burley MP (Conservative, Cannock Chase) makes a speech that is basically a long repetition of this bad argument. This was his first speech in the Commons. For his constituents' sake it will hopefully also be his last.

Caroline Flint MP (Labour, Don Valley) makes an excellent speech later in the debate that contains this rebuttal to that argument.

Equality before the law does not and cannot mean identical treatment for defendant and complainant. There is a vast array of ways in which the criminal justice system already, and rightly, treats defendants and complainants differently. Both should be treated fairly, but that does not mean identically; if that were the case, presumably we would no longer afford the defendant the advantage of the burden of proof, and complainants would have to be held on bail or in custody before their case came to court. The suggestion betrays a fundamental misunderstanding of why victims of rape are given anonymity in the first place, and that has been expressed very eloquently by colleagues in today's debate.

Finally, Robert Buckland MP (Conservative, South Swindon). He makes some good points - that the debate should be about "reporting restrictions", which is what they are, rather than "anonymity", which gives a highly misleading impression. He also says some things that are not so useful.

I will give the House a simple example. Where the act took place can often be a powerful indicator of whether consent or the lack of it can be proved. For example, if the act took place on a floor or an area that would not be consistent with consent, scientific evidence can often help to prove a case, particularly if the defendant and the complainant disagree about where the particular act of intercourse or sexual misconduct took place.

He goes on to make a good point about how police should be doing a better job of treating the places where rapes took place with the care they would treat other crime scenes, but is he really trying to say that the floor is definitionally inconsistent with consent?

Slightly later, saying that the decision on anonymity should be left to the judge, he says:

It would also allow a properly informed judge, faced with an unmeritorious application from a defendant who perhaps did not deserve the protection of reporting restrictions as much as someone of good character, to make a decision based on all the information before them.

Given that "of good character" is usually a euphemism for "white, male and middle-class", I'm not sure this would be a good addition to the process. There are already enough problems with judges treating domestic violence cases as not particularly serious (the tea poisoner, for instance)

Later on he intervenes to ask

The hon. Gentleman is not suggesting that there is a trade-off between the effect on an innocent person and rape being undetected and victims not being served by the system, is he?

Geraint Davies MP (Labour, Swansea West) gives the obvious reply that of course there is a trade-off. The harder you make it to convict defendants, the more innocent defendants will be acquitted (or not charged, or not arrested), but clearly too the more guilty defendants will escape justice and often go on to commit crimes against more victims.

This is why I don't believe "it is better to acquit 100 guilty suspects than to convict a single innocent one". If you convict an innocent one, you've created one victim, plus however many additional victims the real offender then causes. If you acquit 100 guilty ones, that creates many more victims. I'm not sure where the balance should lie, but one could probably work out the victim-minimising ratio for any particular crime based on the amount of serial offenders.

General lessons

One very useful thing about this debate, apart from exposing some discontent from at least some coalition backbenchers (mainly the women: have I mentioned that a gender-balanced parliament would almost by definition make better decisions?), is that it sets out exactly what the government intended that line in the coalition agreement to mean.

  • Reporting restrictions
  • For the crime of rape only
  • Up until charge

Up until charge means that the number of people falsely accused who will actually be protected by this is tiny - reporting in the press pre-charge is extremely rare indeed. I stand by my estimate of one every 3-4 years, based on Kelly, Lovett and Regan - and the Ministers have accepted that the false reporting rate is not higher than 10%, which makes the KLR data for the actual number of named suspects usable - and on the Daily Mail sample that Hannah Mudge put together.

For the crime of rape only gets an extension to this particular bad argument, because as several MPs pointed out from all sides during the debate, this makes no sense. If the consequences of an accusation of rape are so serious, why are they so much more serious than a range of other violent sexual offences, some of which are clearly viewed as more serious by the public, and others of which get colloquially but not legally called rape as well.

Next debates to watch out for

Justice is back for questions on 20 July, and Equalities on 22 July, so probably there will be more questions asked there.