Monday, 12 July 2010

A more ineffective law would be hard to design

I had another "yet another way these proposals make no sense whatsoever" realisation today.

[trigger warning]

The coalition's proposals are to introduce reporting restrictions up to the point of charge, for the crime of rape only.

So, if someone is arrested, but not charged, it will not be legal to report on this. The same applies, here and below, to people suspected/questioned/investigated but not [yet] arrested by the police.

It will be legal, however, if they are arrested for assault by penetration, sexual assault, or any of the other numerous serious sexual offences defined in the Sexual Offences Act 2003.

So, in the case where the press wants to report that someone was arrested but not charged with rape, they only need to report on it as being arrested but not charged with sexual assault, which will also be true1. So in that situation the law2 is utterly useless.

There's a further oddity which is that the police might arrest someone on suspicion of assault by penetration. The press could entirely legally report this2, and if after gathering more evidence while the suspect was arrested, it was decided to place a charge of rape, then the press could also legally report this, but it would perhaps have become retrospectively illegal to make the report about the arrest.

Conversely, if you say that anonymity applies for anyone arrested who might potentially be charged with rape, well, that's anyone who is arrested (they might, in the process of being questioned on suspicion of fraud, admit to rape and be charged with that instead or as well). If you wait until they're released, then it's technically true that they were arrested but not charged with rape and again the law2 either covers everyone or no-one.

You get the same problems, incidentally, for larger lists of crimes, since there'll always be a crime on the edge of the list for which there's a nearby crime outside the list which is an alternative possibility, but with the number of crimes that are similar enough to rape to also be colloquially called rape, the impossibilities become more obvious.

1 Because penetration is explicitly defined as also being touching (in the legal sense), it's not actually possible to commit rape without also committing sexual assault. Similarly, because a penis is a part of the rapist's body, in many cases rape will also be assault by penetration. So anyone arrested on suspicion of rape has also been arrested on suspicion of sexual assault by definition.

2 Where I refer to "the law" here, I mean the specific change to the law proposed now by the coalition. There are other laws. Prejudicing a future trial by releasing information that might not be evidence made available to the jury, or which might make the jury more or less likely to believe other bits of evidence, can lead to a contempt of court charge. Other reporting not protected by reporting privilege surrounding a case might lead to a libel charge. It's hardly surprising that the number of cases reported on in any identifying detail before they reach court is very small.


It's becoming quite clear that the law as now proposed is unlikely to make any changes whatsoever to what actually gets reported in the press with the exception of situations where the police want the public's help to track down a suspect. (I'm going to take a closer look at that situation soon.)

If that was also amended out, that would mean the law probably did absolutely nothing in practice. However, it's still worth opposing, because the principle of it, the decision to prioritise rapists3 over their victims, is still utterly abhorrent.

3 A law so comprehensively ineffective at helping those accused of rapes they didn't commit can hardly be said to be prioritising their needs. It might, however, because of the reinforcement of rape culture inherent in the law, help the rapists.