The Government Inequalities Office

The recent newsletter from the Government Equalities Office can basically be summed up as "Well, it's all a bit difficult. Let's not bother". It's the result of their previous "regulation is evil" review.

The measures announced today include:

Repealing Third Party Harassment law, which will ensure employers are no longer liable for the harassment of an employee by a third party (for example, a customer). A consultation on this change is launched today.

The Law Gazette has a summary of the existing law, and the case law it's based on.

Note that it firstly requires this to happen more than once and secondly requires that the employer could reasonably have done something about it but didn't.

The 'Bernard Manning' case (which held that the employer was liable for inviting a racist and sexist comedian to insult their staff, even though the comedian was not a direct employee) is fairly important since third parties include suppliers and contractors.

It's not clear that repealing this part will actually stop employers being liable, as the Equalities Office apparently holds the view that all harassment is direct discrimination, and of course the case law establishing liability predated the law they're going to repeal. Unless they intend to repeal it by adding a statement that employers are explicitly not liable, of course, which is unlikely to stand up in court.

Next...

Reviewing the Public Sector Equality Duty - a legal obligation on public bodies to consider the impact of their decisions on different groups - to establish whether it is operating as intended.

Repealing the Socio-Economic Duty - a legal obligation on public bodies to consider the impact of their decisions on social class.

I'd be more worried about the first point if the government had not repeatedly shown that it's completely trivial to ignore it anyway, if you are the government. Repealing the Socio-Economic Duty is hardly surprising either, given how obviously they've been ignoring it so far.

Then...

Tackling gold-plating and over-compliance by working with the British Chambers of Commerce to help small-and-medium-sized companies understand what they do and don't need to do in order to comply with the Equality Act.

We must remember that the Act's purpose is to give plausible deniability when people are discriminated against. Some companies have got confused and gone beyond this to attempt to actually stop the discrimination.

Repealing employment tribunals' 'wider recommendations' powers, which will remove the power of tribunals to recommend the introduction of, or changes to, policies that affect all of an employer's staff - not just the employee who brought the case. A consultation on this change is launched today.

We must remember that it is far more effective, and good for the employer, if they have to deal with several separate discrimination cases for the same issue, rather than a tribunal being able to suggest a way to improve general practice after the first one.

The "individual solution to systematic problem" approach of course never fails to keep discriminated-against people from causing too much trouble.

And a bunch to do with the EHRC

Repealing unnecessary powers and duties. Some of the EHRC's powers and duties under the Equality Act 2006 will be scrapped in order to help it focus on its core functions.

Tighter financial controls. The EHRC will comply with government-wide spending rules - in particular, controls on recruitment, consultancy and marketing.

Budget review. The EHRC's budget was cut by over half as part of the 2010 Spending Review. There will now be a comprehensive review of the remainder of the EHRC's budget, to be completed this autumn.

New leadership. A new Chairman and a new, smaller Board will be recruited.

"Having funding, powers, and staff is interfering with the EHRC's duty to pretend everything is fine. We will review this."

They're not necessarily the most useful or sensible organisation, but I doubt these changes will help.

...all in all, about what you'd expect from the Conservative Party.

About four years ago, you couldn't talk about an issue like this without a Lib Dem popping up to say that they were the only major party to have:

Upholding these values of individual and social justice, we reject all prejudice and discrimination based upon race, colour, religion, age, disability, sex or sexual orientation and oppose all forms of entrenched privilege and inequality.

in their Constitution. The lack of an entry for "social class" is telling, in light of the above repeals, isn't it.

I haven't seen a Lib Dem mention that for a while now. Whether that's because there are fewer Lib Dems or because they've realised that like a lot of Constitutional statements it's basically meaningless words, I'm not sure.

Atheism and the kyriarchy

There have been quite a few high-profile incidents of racism and sexism among some atheist communities recently. These have been followed by the predictable pattern of soul-searching about what can be done to prevent them and get more people who aren't white men involved in atheism, countered by the predictable denial that there's any problem at all by the selectively skeptical.

Now, obviously any community that exists in this society is going to be vulnerable to reproducing this society's ideas of the default person, even if its aims are apparently unrelated to structural discrimination. Privilege is designed to be invisible to its owners, so without a concerted effort to work against it (and even then...), people will inevitably repeat dominant social values even if they don't want to.

But I think these particular atheist communities have more fundamental problems than that.

Firstly, what Tami said in the post linked above:

But there is a difference between seeking to use reason and making skepticism and reason an identity. The latter, I'm beginning to think, results not in injecting more reasonableness into public discourse, but less, as people who are invested in touting their own superior logic are rarely self-aware enough to spot and acknowledge the places where their thinking has been colored by bias. And make no mistake--no one is immune to the biases inherent in our society--not even the guy who calls himself a Skeptic and fancies himself the smartest person in the room.

Secondly, their aims are, by definition incompatible with the ending of kyriarchal systems of privilege.

Their rhetoric makes it very clear that they¹ wouldn't be satisfied with a society in which religious belief and lack of religious belief were treated as equal. They want to be above religion, with religious people the subject of disdain for their "irrational" and "obsolete" beliefs.

And there is the problem. They want to be on top of the heap. They dispute the construction of the heap - why are atheists not at the top of it² - but they don't object to its existence. It's no surprise therefore that debates over "what should the relative position of men and women in the heap be?" are frequent - the alternative answer of destroying the heap entirely is unthinkable.

All forms of oppression are so strongly entangled that it cannot be possible to eliminate one³ without attempting to eliminate all of them. By supporting and encouraging the existence of the heap, they make it impossible to eliminate the other parts of the heap they disagree with.

Footnote

¹ I've had to be fairly non-specific about exactly which atheist communities I'm referring to, because it's not as if there are official denominations of atheist. So the definition is going to have to be somewhat circular: "the sort of atheist I'm talking about is the sort of atheist who fits the description I give". But I hope nevertheless it's obvious enough that there are many atheists and atheist communities that are not like this, and who I'm not talking about here.

² How far down they are of course varies considerably by country and region, as well as many other factors. Trends suggest that they will get to the top of the heap and be the default eventually, at least in some places, just through weight of numbers.

³ That's not to say that I believe, ad absurdum, that all existing forms of oppression will end simultaneously or not at all. Clearly on some day in the distant future it may be that racism ends but some heterosexism continues, or vice versa. For now, however, all forms are so entangled that trying to end one (or a few) in isolation is doomed to failure.

Given the attempts by some of these atheists to, for instance, redefine religion as mental illness, I think they're more likely to increase the entanglements between oppressions than decrease them.

Abortion rights - convince your MP: this could be a very close vote

More anti-choice work from the usual suspects, in the continuing attempt to gradually introduce US-style "you can only have an abortion if the moon is full on a Tuesday with the agreement of three doctors, two vicars, and a greengrocer, with a 32-hour waiting period" restrictions to the UK.

More information at Abortion Rights and The F-Word.

If you are a UK citizen or resident please write to your MP and ask them to vote against these amendments if they are discussed at Report Stage.

Initial assessments in the press suggest that the amendment might pass but by a very narrow margin. It is therefore crucial that pro-choice MPs are reminded that they need to turn up and vote against it, that wavering MPs are convinced to vote against it, and that anti-choice MPs are given sufficient doubts that they abstain.

You can get a rough idea of how MPs are likely to vote at Public Whip - anyone who voted 'No' on that vote will likely vote 'No' on the amendment too. However, it's quite possible that many of those who voted 'Yes' can also be convinced to vote 'No' this time. If your MP isn't newly-elected, then you may be able to use this information to tailor your letter to their views.

Also potentially in our favour is that the Health and Social Care Bill itself is highly controversial - it has already been returned to Committee for a massive rewrite once, after major public objections and serious Lib Dem uneasiness with its content. Adding an entirely separate controversial issue to it has the potential to wreck the whole Bill, and this may explain the news that the government is now unlikely to support the amendment.

Nevertheless, we can't take any votes for granted.

Here's my letter.

I am writing concerning the amendments proposed by Nadine Dorries MP and Frank Field MP to the Health and Social Care Bill.

The amendments would prevent any non-NHS body that provides termination of pregnancy (including those providing those services on behalf of the NHS) from also offering counselling to women considering abortion.

This principle - that advice should be given by someone entirely unrelated to the provider - is not demanded, and nor should it be, for any other medical procedure.

Furthermore, women seeking abortions who feel that they would like counselling already have the choice to go to any provider that they wish to, and can already choose a separate provider if they feel this would be beneficial.

These amendments act to reduce their available choices, but also - by requiring women who would not otherwise do so to seek out a separate provider for advice and counselling - will increase the time between a woman deciding to obtain an abortion and actually being provided with one. Since the earlier an abortion can be carried out, the easier and safer it is for the woman concerned, this is extremely unhelpful.

Field disingenuously portrays this as being similar to advice on pensions, where there is a conflict of interest if the company selling the pensions is also advising customers on their choice of pensions. However, this reveals more about the mindset of the amendment's sponsors than about the real situation:

• medical care is not a commercial product, and it is considered beneficial for all other medical procedures for advice to be given by the provider of the procedure. Termination of pregnancy is no different.
• counselling is explicitly not about giving advice, but about allowing a client to come to their own decisions.
• neither the NHS nor non-governmental abortion providers have an interest in maximising the number of abortions carried out (unlike a pension company which does have an interest in increasing the number of pensions it sells)

The amendment is based on a transparently false caricature of the motivations of medical professionals, and a massive underestimation of the ability of women to make decisions about their own bodies.

I ask you to please vote against these amendments if they are discussed at Report Stage on the 6th and 7th September, and to encourage your colleagues in all parties to do likewise. It is also rumoured that the Department of Health intends to implement some or all of the measures set out in these amendments without the need for legislation, and I therefore also ask you to put pressure on the Department not to do so against the will of Parliament.

Thank you

Inevitably, rights need to be defended

Well, it was obvious this was coming sometime during this Parliament. The Telegraph reports that amendments to further restrict access to abortion will be tabled to the Health and Social Care Bill by MPs including Nadine Dorries MP (Conservative, Mid Bedfordshire) and Frank Field MP (Labour, Birkenhead).

[trigger warning]

The amendments haven't yet been filed, but the Telegraph reports that the first will:

[...] create a new precondition for any women having an abortion to receive advice and counselling from an organisation that does not itself carry out terminations.

...and the second will transfer responsibility for setting clinical guidance for abortions to the National Institute for Health and Clinical Excellence (away from the Royal College of Obstetricians and Gynaecologists).

The second appears to be more symbolic than anything else, at an initial glance: they don't like the recommendations that the RCOG is likely to produce, so they'll give the job to someone else less specialised. Given that two doctors are required to agree for an abortion to happen - one or two more than any other medical treatment - this may cause problems with finding doctors if the guidelines NIHCE comes up with are significantly more anti-abortion than the ones RCOG would have written, but there will still be plenty of doctors who believe that forcing someone to go through with an unwanted and/or dangerous pregnancy is sufficiently harmful in its own right.

The first comes right out of the USA anti-choice book, though. It's full of typical anti-choice assumptions:

• People in possession of a uterus automatically lose all their critical thinking skills and therefore, by force of law, must be required to be take advice and counselling whether they want or need it or not. No-one ever thinks about whether or not they should have an abortion before they walk into their GP's office.

  Unsurprisingly, this isn't applied to most other life decisions. Perhaps, given that - according to Science! - 99.81% of decisions on who to heterosexually marry are non-optimal, there should be mandatory advice and counselling for anyone wanting to get married. Religious organisations would not be allowed to provide this advice, since that would be a conflict of interest.

• The pro-choice side want to maximise the number of abortions performed. Therefore it's a major conflict of interest for advice to be provided by an organisation (such as the NHS) which also provides abortions.

  Claire Murphy of BPAS is quoted in the Telegraph article for the obvious reality:

  On average, 20 per cent of women who approach BPAS initially seeking an abortion eventually chose not to have a termination, [Murphy] said.

  “The bottom line is that like any other medical procedure, women have to consent before they receive abortion treatment,” she said. “We have no interest in pushing women into procedures they do not want. We are about giving women choices.”

• Reducing the number of abortions, in and of itself, would be a social good. The means taken to do this are irrelevant.

  The social problems resulting from a vast increase in the number of unwanted children - it's not as if our foster care and adoption services are keeping up with demand as it is; the health problems caused by carrying on with unwanted or dangerous pregnancies; the problems caused for families who neither want nor can cope with an extra child - all quietly ignored.

It's unfortunate, because there are several largely uncontroversially good actions which could be taken, one side effect of which would be to reduce the number of abortions. "Cheating" and just making abortions illegal or harder to get¹ doesn't have the same effect.

For instance:

• Researching - and not restricted to one form of reproductive anatomy, either - cheap, fully reliable contraception without side effects or the possibility of sabotage, and making this widely advertised and available to everyone in the country.
• Significantly increasing the level and range of support available to parents - especially those without much money, and those with disabilities, and single parents, and everyone else who differs from society's default parenting model.
• Major improvements in the coverage and availability of sex education for children - and, indeed, if we don't want to take most of a century to catch up, for adults too - especially on coercion issues (which often include coercion over contraception). Dismantling as much of rape culture as possible would help.
• Far more efficiency and effectiveness in dealing with domestic violence and rape.

All of these would - as a side effect - reduce the number of abortions that were needed annually, either by making it less likely that people would become pregnant unexpectely, or by making it more likely that people who became pregnant would be able to support a child for the following decades.

Of course, helping people is not really what these MPs go in for (both are well to the right of their party as a whole) - far easier to punish them for not doing exactly what those MPs would have done.

Aside on Parliamentary Procedure

Votes concerning abortion in the Commons are generally "free" or "conscience" votes on which none of the parties take a particular line. As far as I can tell, none of the major parties currently represented in the Commons have any official policy on abortion.

In practice, most Labour MPs will vote against restrictions, most Conservative MPs and most Northern Ireland MPs will vote for restrictions, and the Lib Dems will split roughly equally on both sides. When there was a Labour majority in the Commons, this wasn't too bad. At the moment, however, the odds are not good (though, with around a third of MPs being new, they may be better than it looks).

It's not clear yet whether the amendments will be submitted at committee stage, report stage, or for third reading, which affects who will be able to vote on them.

Footnote

¹ In Northern Ireland, abortion is almost entirely illegal. Middle-class people who are pregnant there can quietly get on a ferry to Great Britain, have an abortion, and return home. Poorer people need to rely on the services of groups like the Abortion Support Network to cover their travel costs, hotel bills, and so on. (ASN is always in need of donations to cover its costs, if you have some spare cash)

Quite a few of the suggested restrictions are heavily class-based. Outlawing abortion entirely would cause too much opposition from the middle-classes and their swing votes. Restricting it won't inconvenience them too much and "who cares about poor people anyway?".

The (non-)paradox of agency and oppression

This isn't really a paradox, but it's very easy to get drawn into lines of reasoning where it looks like one if you're not careful. Stated simply:

If it's okay for any individual to do X, why is it a problem if most individuals do X?

Or in inverse:

If it's a problem that most people do X, why shouldn't individuals who do X be criticised?

So, the apparent paradox is that it's okay for any individual to do X, but when most people do X, it's considered a problem. For a topical example, there have been a few reports recently about the domination of the press by men¹. One of the common responses to the suggestion that this might be a problem is the suggestion that "maybe women just don't choose to be journalists".

That probably is a significant factor. So - if it's a problem that women don't become journalists, especially senior journalists (and it is, because of the effect on what gets considered news and how it gets reported) - isn't that a criticism of women who didn't choose journalism as a career? Aren't you just wanting to force society to conform to some gender-equal state regardless of the wishes of its members?

Or, for an example that works from the other direction, that I've criticised before, "if the female beauty standard is a problem, isn't it wrong for women to wear makeup?"

Two apparently-opposed statements

In a bit more detail: one of the major principles of social justice activism is that less-privileged people have as much agency as more-privileged people, and so should be assumed (as with a default person) to have the capability to make autonomous decisions about their own life. Criticising those decisions is almost always a really bad idea because you don't know why they made them, and the idea that you could guess better than them what the correct decision was is extremely arrogant and completely erases their capacity to make their own decisions. Just the way that pro-default society likes it.

Another principle is that there are real widely-held stereotypes of behaviour, differences in treatment, and so on, that lead to some people being privileged over others, and that this privilege is a bad thing and should be dismantled. Such dismantling is likely to be resisted, of course, by the people who benefit from that privilege.

The conflict then comes in a flawed chain of reasoning something like the following:

• Upholding privilege is bad
• Actions which accept the path of privilege tend to uphold it
• Therefore actions which privilege wants you to take are bad

Or perhaps from the other side

• All of this is a consequence of the sum of individual decisions
• Individual decisions shouldn't be criticised
• Therefore the sum effect shouldn't be criticised

This gets used either as an excuse to uphold the status quo, or an excuse to attack non-privileged people who are not seen to be doing enough to dismantle it.

Neither is a good situation.

The really obvious flaw in the logic

I'm not claiming this is the only flaw or even the most major one. But it's the stand-out neon letters one, for me.

People's choices are constrained

No-one ever gets a completely free choice about what they do. For instance, when I was last job-hunting, I had two broad options:

1. Restrict my search roughly to County Durham. This reduced the chances of finding a suitable job, but meant that I could stay in a part of the country where I knew several good friends.
2. Search nationally, increasing the chances of finding a job, but also increasing the chances of having to move to a place where I knew no-one.

I'm not going to say which I chose, but for me, both were viable options.

For someone with a partner who already had a job in County Durham, the first option becomes much more preferable, if at all possible.

For someone who was shorter on cash at the start of their search than I was, the second option might have to be taken.

For someone who was more widely-travelled than me, and had plenty of spare cash, they might have plenty of friends in London already, and have the third option of moving there and then looking for work. That option wasn't even on my list.

The options that any individual has in a particular situation depend on their more general circumstances, their privilege, and many other externally-imposed factors.

Those factors, of course, include other people's decisions. In the case of employment, for instance, if you have a Muslim-sounding name, you might choose to apply for a job at an airport, but that doesn't mean anyone will treat the application fairly.

Resolution

That, of course, makes the resolution of the apparent paradox entirely straightforward. It's absolutely legitimate to look at what factors are influencing whether people apply for careers in journalism, and why those factors are different for different genders.

It's also legitimate to see if there's anything that can be done to change those factors if the overall effect appears to be harmful.

It's possible that, after changing those factors, some people will make a choice that they otherwise wouldn't have made. This isn't interfering with people's choices, or restricting them - it's giving them extra options² in addition to those they already had.

Similarly, one can criticise and try to dismantle the beauty standards while not criticising any individual for their own choices over their appearance³. (The people who are ready to criticise women for wearing make-up rarely seem willing to equally criticise men for not doing so, as eastsidekate points out, though surely both "reinforce" the same gendered beauty standards)

The distinction between external factors affecting people's choices, and those choices themselves, should be very obvious. In general, it only serves the interests of the hierarchical status quo to hide that distinction.

Footnotes

¹ While it's not mentioned in the preview of this survey, one could find much the same result for white people, rich people, non-disabled people, and most other axes of privilege. It also suggests that of the 3,700ish people surveyed, only two genders were represented at all (which is either evidence of a far more significant bias in journalism, or evidence of bad data gathering at some stage - the full report isn't out yet, so I don't know which)

² Which works both ways, of course - if people who aren't men are more likely to choose journalism as a career, that would be one way to adjust the balance. But likewise, if men are made less likely to choose journalism as a career, by making it a more viable choice for some of them to enter other (currently mostly female) careers, that would also have the same effect.

³ Some choices like blackface need criticism, of course, but that sort of choice is obviously not what I'm talking about here. I'm discussing choices for which there is no problem with any individual making that choice, but there may be a problem when most individuals feel they have to make that choice.

Male as default

Dear Mark Hendrick MP (Labour & Co-operative, Preston)

The 18th Century called. They want their gender essentialism back. Please contact your nearest temporal courier.

Also, you may want to spend more time with your constituents, since you seem to have forgotten what they look like.

Yours sincerely

Me

Coalition continues not taking rape seriously

[trigger warning]

The government has shelved a study into police handling of rape cases, to "save money". The total expected cost of the study was £441,000.

Meanwhile, Essex Police have been strongly reprimanded by the Independent Police Complaints Commission for, essentially, doing absolutely everything wrong when investigating a rape case. In summary: a woman reported twice - several months apart - that someone had broken into her house and raped her. On both occasions, the police reported that "no offence had occurred", without checking for actual evidence, because they were sexist ablist bigots (or as the IPCC puts it were "adversely influenced by the woman's mental health history"). When the suspect was finally arrested he admitted to the crime.

But I'm sure there's no need for an actual investigation into police handling of rape cases and consequent steps to get them to consistently do it properly. Baroness Stern's report pointed out that actually following the existing guidance would be a very good start, of course, but I doubt that £441,000 - a tiny amount in the context of government spending - will be going towards that either.

Meanwhile, the report the government was promising on "why anonymity for suspects is a good idea" has been delayed yet again, until October. This is hardly surprising, of course, given the lack of evidence there actually is for this claim, and the fact that - when I asked in August - the ministry had no evidence at all regarding the number of suspects their current proposal would affect or the likely effect on media reporting their proposals would have.

It was fairly clear right from the start that they didn't actually have any evidence backing up their proposal, but it's always useful to have more official confirmation of this.

Gender pay gap: survey says 57 years before reporting is accurate

The Chartered Management Institute have released the results of a survey of the gender pay gap among managers.

It looks as if the £10,000 gap reported is the difference between the means, which doesn't make it particularly useful. While it's both unsurprising and wrong that top-level male managers in big companies make several hundred thousand more on average than their female counterparts (and there are significantly more men than women at this level), most women (and indeed almost as many men) are never going to get anywhere near that sort of job anyway. At the junior management level, there was an average £1,000 annual gap between men and women, which is still fairly substantial.

The study has been reported (or at least, the press release reprinted) quite widely, and all of the major news organisations I've found (Telegraph, Guardian, BBC, and Daily Mail) have generally failed to do any sort of useful journalism:

• They all report the raw figures from the press release (I've rounded them off above because the extra precision is meaningless)
• They all report the '57 year' figure as if a constant rate averaging means anything at all. It makes sense to note it because the fact that the year-on-year improvement is tiny compared with the size of the gap is important - but it should be made clearer that it's an illustration of the slow rate of progress, not a prediction.
• A lot of the headlines and sub-headings talk about this being the pay gap as a whole. The article text makes clear it's only talking about managers ... and none of them mention that the pay gap in general, when they go on to look at the UK's generally large pay gap, is not just composed of pay differentials between equivalent jobs ("horizontal") but also due to women not being employed in the higher paid jobs as much ("vertical"), and doesn't just include managers. There are a lot of class issues and intersections with other discriminations being ignored here.
• Other than the Daily Mail¹, none of them note that part-time salaries were converted to a full-time equivalent. The Daily Mail forgets to note that since women are far more likely to work part-time than men, then the conversion may well hide further problems.
• It's not clear what proportion of the gap is "women being paid less than men for the same job" (which the reporting is assuming and focusing on) and which is "women not being in the high paid jobs" (which seems more likely to be causing most of the gap). The distinction is very important - the Telegraph mentions that the Equality Act will outlaw "pay secrecy" clauses in contracts from October, which will certainly help with the first cause but not with the second - and not actually mentioned. The Guardian mentions Sweden's better record on pay gaps, but it's worth noting that Sweden enforces gender quotas on senior management boards of large companies, so the "vertical" gap is at least slightly reduced there.
• Some of the articles have reprinted the press release's figures of the number of employees (around 43,000) and organisations (around 200) that were surveyed, but none of them mention whether there was any attempt to get a representative sample within the organisations (i.e. do the proportions of male and female managers surveyed at each level represent the proportions within those organisations).

As is typical, the survey raises far more questions than it answers, and the journalists don't ask any of them.

¹ And what have we come to when the - narrowly - best reporting of an equality issue is carried out by the Mail?

An initial attempt at quantification of harm: hundreds to one

[trigger warning]

In previous posts (one, two, three) I tried to quantify how many falsely-accused suspects would actually be helped by the reporting restrictions.

Because it's so rare for a false accusation to lead to a trial, before which press reporting naming a suspect is extremely rare, the upper bound is probably around one person every three years, and the actual figure may well be significantly lower.

In exchange for this, how many does it directly harm by reducing the methods available to the police to gather information or identify a suspect.

Reporting restrictions between arrest and charge probably won't cause a problem in practice. Suspects can only be detained for 24 hours (36 with senior authorisation) without charge, which means that by the time the press deadlines come round, they'll probably either have been charged or released. If charged, the restrictions no longer apply. If released, the press are unlikely to report anything for fear of contempt of court and/or libel cases.

Before arrest, however, there might be more of a problem. I searched Nexis for cases in the past 12 months where an e-fit had been released and reported in the press or other media (among other similar anonymity-removing detection methods). I found 9 distinct cases, some reported multiple times. In at least one of these cases a conviction was secured.

Allowing for the possibility of cases where a description was reported but not an e-fit (and so the search didn't find the report), and where the suspect has not yet been caught and convicted but will be in future, this seems to give 1 a year as a reasonable lower bound on the number of rapists caught and convicted through these methods, with the actual number likely to be higher.

If only between 10% and 15% of rape victims make a report, and only around 4% of rapes are reported, this means that the average convicted rapist is likely to have committed many more rapes or other serious sexual offences before being caught. Weinrott and Sayler (1991) suggests that the mean number of rapes committed is around 10 times the number charged for, and some of the previous studies they reference suggest a higher value.

This is not surprising - the combination of low reporting rate (for which there are very good reasons, by the way) and the high attrition rate (for which many of the reasons are not good) means that the justice system selects for the most prolific serial rapists in its convictions. (And then sometimes gives them lenient sentences and lets them go to commit more crimes, but that's a topic for another time).

So, we can probably assume that by successfully imprisoning a particular serial rapist, we not only get justice for their previous victims, but also prevent numerous other victims of rape, other sexual assaults, and other non-sexual crimes (consistent with Lisak and Miller, Weinrott and Sayler found that these convicted rapists had also committed numerous non-sexual crimes).

So, if the coalition's proposals prevent the use and press reporting of e-fits, the proposals as a whole will protect one victim of false accusations every three years at best, and allow at best tens of additional crimes.

In other words, in the absolute best-case scenario, for every person this proposal helps, hundreds of people will be harmed¹. Anyone voting for it or supporting it must be held fully accountable for that harm.

Postscript

If the proposed law ends up worded such that it avoids this problem and allows the police and press to continue co-operating as they do on distributing information about wanted criminals, then it is vanishingly unlikely to directly do anything at all.

Indirectly it will still contribute to rape myths and rape culture (though the effect of this will be harder to quantify) and should still be opposed even in that case.

¹ Since some of these harms will be relatively minor non-sexual offences, and some of them will be rapes, it's probably not even worth trying to determine how severe the harm prevented versus harm allowed is beyond the number of victimisations.

Two private member's bills

There is usually very little opportunity in the House of Commons for anyone other than the government to present legislation. A rare opportunity for an ordinary MP to put forward changes in the law is the Private Member's Bill. Only at most 20 MPs a session can put forward a bill this way (chosen randomly), and usually not all of those will get a chance.

Even when a bill is put forward, it is of course extremely unlikely that it will pass - or even get beyond the Second Reading stage for further consideration - without government support. Nevertheless, they are a guaranteed way to get an issue debated at some length in Parliament, and depending on the support, can influence future government policy or even on rare occasions pass into law.

A couple of the ones that have got onto the list this session:

A lot of focus has been on the proposed Face Coverings (Regulation) Bill from Philip Hollobone MP (Conservative, Kettering), which according to to the BBC would make it illegal to wear full-face Islamic veils. Oh, and balaclavas. Mustn't look too racist. Operation Black Vote has more analysis of why this is a terrible idea.

I don't have anything substantive to add to that, except to say that living in the colder North of England, as opposed to Mr Hollobone's more southerly constituency, I often go out during the winter wearing a hat and a scarf pulled over my mouth and nose, exposing much the same area of skin as a full-face veil does. I have not once been criticised for this, told I should keep my face uncovered in public, or had MPs challenge my right to dress in that way. I expect that if I did wear a full-face veil, however, I would get all three. So, the MP's attempt to hide his racism (and indeed sexism) by also criticising my dress really doesn't work.

Fortunately, his Bill is 17th on the priority list, so it's unlikely to get the time it needs scheduled.

At 6th on the list, however, where it might actually get debated, is Anna Soubry MP's (Conservative, Broxtowe) bill: Anonymity (Arrested Persons). The Second Reading has been scheduled for the 4 February 2011, and it's unlikely that the full text of the bill will be available until shortly before then. For now, there's the summary:

A Bill to prohibit the publication of certain information regarding persons who have been arrested until they have been charged with an offence; to set out the circumstances where such information can be published without committing an offence; and for connected purposes.

It's already not police practice to reveal the names of pre-charge suspects who they have arrested, so the times this occurs generally break down into the following categories:

1. The arrest took place in public and the suspect's allies are encouraging the reporting to draw attention to what they view as a wrongful arrest. Arrests of people who were protesting, for instance.
2. The suspect's name or identity has already been revealed, because the police needed to do so to locate them. People who've been arrested after a stand-off, for example, or after an appeal to locate someone alleged to be a dangerous criminal.
3. The crime is incredibly high profile, and half the neighbourhood already knows who has been arrested for it. The press don't even have to ask the police, except to get confirmation that a "37-year old man" was arrested.
4. The suspect is very famous for other things, and someone in the police leaks the information to the press (directly, or more likely indirectly via a friend).

In the first case, no-one actually wants anonymity, except perhaps the police and the government, of course. In the second case, their identity is already public and there's no point in avoiding revealing that they've been arrested. In the third case, the rumours will spread fast enough anyway, and it's probably best to stop any incorrect rumours that someone else was arrested by allowing the press to report on the matter.

The fourth case is less clear - this shouldn't really happen, and celebrities shouldn't have less of a right to privacy than other people, true. It could also make it easier to find a jury who haven't been influenced by press reporting. I can't, however, think of a way to rule out this case that doesn't take out the third case as well, which could be a problem. Perhaps the Bill, when the full details appear for Second Reading, will have found a clever way to draft the details.

I wonder why this Bill was introduced. I can't work out whether it's been introduced to give more support - and possibly bring forwards - the proposals to give anonymity to rape defendants, or if it's been introduced as a way to distract from them by introducing something that looks good and would keep certain people happy without actually interfering with police operations.

If it's the former, of course, it'll bring the plans forward quite a bit, which means there's less chance of the coalition government collapsing or deciding they have better things to do, and that would be very bad indeed.

If it's the latter, I think it's in theory quite clever - between arrest and charge is a maximum of 24 hours (if they're arrested and released, it's fair enough not to report their name, I think), so that's not really time for the police to do anything useful with publicising their name, so they won't. Pre-arrest it won't cover, so it won't interfere with police investigations and evidence gathering. Post-charge it won't cover, so it won't interfere with the CPS preparing a case. So it can be debated and passed, the coalition can feel that it's achieved enough of the anonymity proposal to count it as done and avoid a bigger fight, and in practice very little will actually change.

There is of course the catch that having been introduced the government or the Lords could easily amend it into something more unpleasant, so if this is the idea I don't think it's a particularly safe way of doing things.

The full text of the Bill, which might give some clue as to what the intent is, probably won't be available until shortly before the Second Reading. The Bill's sponsor is a new MP, so doesn't really have any voting or speaking record to analyse yet. I'll keep monitoring it to see what happens.

Yes, this is exactly a "Rapist's Charter"

Yesterday's Justice debate in the Commons, as predicted, had a lot of questions for the government on their proposal to give rape suspects anonymity.

There were many speeches, all now linked to in the updated parliamentary timeline and several written questions.

For now, though, I just want to concentrate on an answer given by Kenneth Clarke QC MP (Conservative, Rushcliffe) near the end of the debate.

[trigger warning]

Barbara Keeley MP (Labour, Worsley & Eccles South) asks:

In a recent case, a Salford man had committed a rape and was bailed, but then committed a further rape, and the police believe that there are further victims of this man. Can the Secretary of State explain why the Government have committed in their coalition agreement to extending anonymity to such defendants before all the evidence is heard? Can he also say who will now be consulted for that evidence?

It's a reasonable question, but after all the other reasonable questions he's already been asked during the debate, it finally provokes him into saying what he's actually thinking. I'll break this into a few separate bits.

With great respect, I find it very surprising that so many questions are being raised about a proposition that has been before the House, on and off, for the past 20 years and is not easily resolved.

I'm entirely sure that the Conservative and Lib Dem MPs supporting this proposal were somewhat taken by surprise by the breadth and depth of opposition it rapidly attracted. This is because they're a bunch of mostly-white, mostly-male, mostly-otherwise-default people with very little sense of their own privilege and very little empathy for people who aren't like them.

Mr Clarke previously in the debate was offering some unconvincing denials that the proposal only made it into the programme for government because of the all-male negotiating teams.

We will, of course, look at all arguments, including the experience of the case to which the hon. Lady has referred, but that is only one of the considerations to be taken into account. There will undoubtedly sometimes be cases where the publication of the name of the accused person gives rise to other people coming forward with well-founded complaints against that person. We will have to see whether there is any evidence that such cases are a significant proportion of the total cases of rape.

This is something I don't know whether there have been any studies done (though I'd be surprised if not) - and if the government is going to fund some more, great.

However, this is not the only reason for which suspected rapists' anonymity is undesirable.

We shall also have to consider the arguments on the other side, where a woman can make an anonymous complaint, the man can eventually be convicted, after going through a long and probably rather destructive ordeal, and the woman retains her anonymity as she walks away, with her ex-boyfriend or ex-husband left to live with the consequences.

My initial reaction mirrored that of several of the MPs present, recorded in Hansard:

What?

I'll say it again. What?

Mr Clarke, let us remember, is the Justice Secretary. Responsible for Justice, and crime and punishment and law and order and other such things.

He has just described someone who has been convicted, in the courts of this land, of one of the most severe crimes we recognise, and he is complaining that this convicted criminal has to live with the consequences? That is the entire point of having a justice system, and criminal law, and punishing people who break it, that criminals have consequences for their actions that they have to live with.

I know there are good arguments for reform of the justice system and the prison system, that justice is often racist and classist, that prison conditions can be needlessly unpleasant, and that people are often given prison sentences for minor crimes that would be better dealt with in some other way. Saying "Oh, poor rapists. How terrible that they're imprisoned." is not, however, the sort of reform that the system needs, and not the sort of reform I expected a "tough on crime" Conservative to suggest.

Back when this proposal was first released in the programme for government, it was called "a rapist's charter". People calling it that were told that they were over-reacting - it was "for suspects", "innocent until proven guilty", that was "all". But now and again, the mask slips, and its real purpose becomes clearer.

Congratulations to all the Labour MPs involved in keeping up the scrutiny of the government here. It sounds like some more will be needed.

Meanwhile, in other "sexual predators getting light sentences" news, a police officer who coerced women into sexual activity in exchange for overlooking minor traffic offences has been jailed for the derisory term of three and a half years on charges of "misconduct in public office".

How many is this actually helping?

Some more discussion of whether the coalition's proposals on rape defendant anonymity would do anything useful, even if the inevitable negative effects are ignored or disbelieved. (Summary: No)

(and please sign the petition if you haven't got round to it yet)

[trigger warning, especially for some of the links]

Kelly, Lovett and Regan's (PDF) study on attrition includes a section on false allegations. In their sample of 2,643 reported cases, the police had recorded 8% as false allegations. Some of this, however, was found to be due to misclassification - after removing those, and cases where the police had declared the report false due to misconceptions of what a "real" rape victim would do, they estimated that around 67 of the sample were really false allegations. Between these allegations, there were at most¹ 39 named suspects, 6 of whom were arrested and 2 charged.

The British Crime Survey reports that police recorded 13,133 rapes in the 2008-9 reporting period. Based on the combination of these figures, we'd therefore expect at most (39 / 2,643) * (13,133) false accusations naming a suspect annually, or around 200.

Previously calculated: there are around 210,000 actual rapes each year, or over a thousand times as many. I know it must be unpleasant to be falsely accused of any crime, but this is really not a significant risk. (For comparision, around 200 men might be falsely accused each year, but around 7% of those 210,000 actual rapes have a male victim, or around 15,000 annually. That's quite a difference in both risk and impact even if you only consider men)

Of those 200, how many will be reported on in the press? Looking at Lexis Nexis, I'd estimate² that around 250-500 rape cases annually will receive some reporting in the press either before the end of the trial or when there is an acquittal. (Many more are reported after conviction, of course) A few of these will be reported on multiple times in multiple press sources if it's a particularly high profile trial, but most will not.

So, that's around 500 of 13,000 receiving some press attention. Of those, virtually all are post-arrest. So, of the 6 people arrested on a false accusation, roughly (200 * 6 / 39) * (500 / 13,000), or 1.18, will be reported on in the press. Actually, the number is likely to be smaller than that, since most of the post-arrest press reports are post-charge, the 500 is the upper estimate, some of these reports involve the rape of children under 16 (which involves different crimes), and so on.

So, the coalition is proposing this anonymity in the press for alleged rapists, to help protect the reputation of one person a year. Now, I'm sure this person is very happy about this, and so would I be if the government introduced legislation for my personal benefit.

(Note that even if we go with the higher 8% figure that the raw police data claims - and Kelly et al. demonstrate fairly convincingly why it's probably not the case - that still only increases the partial protection this change would provide to about 5 people a year) Edit 15 June. Sorry, no it doesn't. There were 39 named suspects, 6 arrested, 2 charged, out of the full sample of 2,643. I was already assuming conservatively that the 3% figure included all of them, so increasing the rate back to 8% doesn't add in any more suspects.

Now, it's not that protecting the reputation of the innocent is a bad thing (just as reducing suicides of suspects - even the guilty ones - is not a bad thing). It's just that this is a stunningly ineffective way of doing it and comes with such massive costs that it's impossible to see it as a net benefit to society unless you value the reputations of a few men above the welfare of tens of thousands of rape victims.

For around two or three people's reputation ([stronger trigger warning] and maybe a fraction of a suicide prevented) each year, the government is willing to harm the cases of thousands of rape victims and provide additional to protection to serial rapists.

False, "false" and the unhelpful law

While I'm on the topic of false allegations, I should bring up a flaw in the current law on rape that means that it's possible for an allegation to be simultaneously true and false depending on exactly what definitions you use.

The Sexual Offences Act 2003 defines a set of offences, including rape, using the following formula (emphasis mine):

(1) A person (A) commits an offence if

(a) he [carries out the act associated with this offence] on another person (B)

(b) B does not consent to the [act], and

(c) A does not reasonably believe that B consents.

(2) Whether a belief is reasonable is to be determined having regard to all the circumstances, including any steps A has taken to ascertain whether B consents.

(3) Sections 75 and 76 apply to an offence under this section.

So, the colloquial definition of rape, and the one that matters from the victim's point of view, is that (1a) and (1b) both happen. From a legal point of view, however, for there actually to have been a crime committed, (1c) must also be true. Sections 75 and 76 set out some limited situations in which a belief in consent is automatically unreasonable, but not enough.

This law is still an improvement on the previous one, which allowed unreasonable beliefs to also be a defence, but it's still not enough. It's not the wording of the law as such that's wrong, but the context of the culture it exists in.

In a culture that's so saturated with rape myths - that consent is the default state for women, that wearing revealing clothing or flirting are indicators of consent, that consent is not revocable, that consent to one activity implies consent to other activities, and so on - "reasonable" is a really low standard. In a culture based on enthusiastic consent, it would be a perfectly fine standard, since point (2) would be interpreted usefully, but we don't have one of those and so the law needs to be better worded (wording improvements, of course, would not harm the law's effectiveness in a future enthusiastic consent culture)

It's based on what an average person would do in the same circumstances, but we know from surveys (2005, but more recent surveys give similar numbers) that the average person is very likely to have a rape culture-influenced definition of consent.

We have a situation here where the victim can make an allegation that they believe to be perfectly true - and which is, in any sense other than one, true - but is as a matter of legal fact false.

So, perhaps it's this set of people that Cameron is trying to protect - those that had ideas of consent that don't meet any dictionary definitions of the word, or fit with definitions commonly in use every day in non-sexual contexts. Those, in fact, that Lisak and Miller and previous studies identified as the 5-15% of men who are perfectly willing to admit to carrying out activities meeting the legal definition of rape or other serious sexual offences as long as you don't call it that on the survey. The "I'm not a rapist, I just force women into sexual activity against their will" crowd.

Now, obviously if you include those that the false allegation rate will go way up (and indeed the number of "real rapes" identified by the BCS will drop too), but I'd put it to the government that these are not people deserving of special rights beyond those granted to the average criminal suspect.

¹ 39, 6 and 2 are figures from the full sample of false allegations, whereas 67 is found by scaling up a sub-sample where sufficient data had been recorded by the police. It's likely, therefore, that some of the 39/6/2 were in the "not actually false" part of the sample, but the paper doesn't state this.

² The Lexis-Nexis search engine really isn't good enough for this. I restricted the search to a particular year (2009), to UK publications reporting on UK events, and to articles categorised as "Sexual Assault" and "Sex Offences", and searched for articles containing "rape" AND ("alleged" OR "allegation" OR "acquittal"). I then visually checked a sample of the result to see how many of the reports were about the same case, or not actually about a specific rape, or post-conviction, to get an estimate of 250 a year. I then doubled this to allow a margin for errors in searching to get 500.

Rape defendant anonymity: update

This post discusses rape, suicide and has links to some extremely graphic news articles. [Trigger warning]

At Prime Minister's Questions on Wednesday, Caroline Flint MP (Labour, Don Valley) followed up on her earlier adjournment debate with more questions for Cameron.

gorilerof3b points out that he may have read the Stern Review, but he didn't comprehend it, and that the sources for some of his statements were unclear.

Yet again, the government are exposed as having thought of the idea first (in the way that eight white cis men in a negotiating room might do), without having any actual evidence to justify it beyond the belief in rape myths of those eight men. So, here's David Cameron PM:

We know that a lot of people are falsely accused, whose careers and lives can be blighted- [Interruption.] Opposition Members shake their heads, but in some cases people have committed suicide.

Yes, it is true, some people have committed suicide after a (presumed by Cameron to be false¹) accusation of rape. Let's assume, again for the sake of argument, that this - as opposed to the vast number of rape victims who attempt or commit suicide because society won't help them - is something the government should try to deal with at all costs.

A big problem for Cameron remains even if we unconditionally accept this twisted premise: his proposals would make no difference.

As previously covered here and in the Parliamentary briefing paper, "anonymity" in law, as currently given to victims and now proposed for defendants, only prevents the media from reporting your name or identifying information.

I'm going to make an assumption here: where the press reports on a rape case and names a suspect, and this reporting takes place before a suicide attempt, the press will also report the suicide attempt. In other words, no-one is going to be named by the press as a suspect, commit suicide, and then not have their death reported. This isn't a completely safe assumption, but it seems unlikely that a media organisation, having decided that a rape case was "interesting" enough to report on in the first place, would then decide that the death of the suspect/defendant would lead to the story becoming less interesting (in some cases, the suicide attempt seems to have been necessary for the story to have been interesting enough for the press to report on the case at all).

So, I searched for news articles containing "rape" and "suicide" from the last ten years. I then ruled out those:

• that came from locations outside the UK,
• there were a lot of these - where the combination of words resulted from the victim having attempted or committed suicide
• where the suspect is only reported as having "contemplated suicide" but for which there's no evidence that they made an attempt
• where the suicide attempt predated any police involvement in the case (i.e. they raped someone, tried to kill themselves, then got arrested)
• where the suspect wasn't named
• where the suicide attempt came after they were convicted
• where I already had an article mentioning this suspect in my list

I don't think I found all of them, but I do think I got a decent sample of relevant articles.

Having excluded those, 18 cases remained, spread across the ten years and from a variety of local and national sources. For each of those, I searched Lexis Nexis UK to see if I could find any mention of the defendant or suspect in the press before the report of their attempted or completed suicide. Trigger warning for all links.

Article	Year	Convicted?	In press prior to attempt
1	2003	Dead before trial	No
2	2004	Acquitted	No
3	2004	Dead before trial	No
4	2005	Acquitted, attempt before	No
5	2006	Dead before trial	No
6	2006	Dead before trial	No
7	2006	Yes	No
8	2007	Dead before trial	No
9	2007	Dead before trial (confessed to police)	No
10	2007	Yes	No
11	2007	Yes	Yes, after he broke bail
12	2008	Not charged	No
13	2008	Not charged, committed suicide a year later	No
14	2008	Yes	No
15	2009	Acquitted, suicide after	No
16	2009	Trial ongoing	Yes, when bailed
17	2010	Dead before trial	No
18	2010	Yes	Yes, after charge

In only three of the eighteen cases was the case reported on in the press before the defendants attempted suicide. In two of those cases, the defendant was later convicted. In the third, the trial is still ongoing.

So, the total number of falsely-accused defendants' lives that would be saved by giving anonymity in the media to defendants, over a ten year period, appears to be approximately zero.

Well done, Mr Cameron.

Meanwhile, this multiple murder suspect, named repeatedly in the press when charged, has recently attempted suicide. I didn't do a detailed study, but even before this report came in today, I didn't have trouble finding cases where murder suspects have attempted or committed suicide. Yet no-one seems concerned about the effect on murder suspects of having their names publicised.

Coming up later in Parliament: at 2:30pm on Tuesday 15 June, is Oral Questions to the Justice department, who "own" this proposal. At 10:30am on Thursday 17 June, the same for Women and Equality. Given the current strong efforts of Labour MPs to keep this issue on the agenda, both seem worth keeping an eye on.

¹ which, of course, is also not necessarily true. 5 of the above sample were convicted, and in a majority of the "Dead before trial" cases reported there was an extremely strong case and no suggestion anywhere in the press that there was a false allegation.

Update on rape defendant anonymity

Last night there was an "adjournment debate" in the House of Commons on the proposals to grant suspected rapists anonymity.

[trigger warning]

Before we get to that:

• There are now just under 1,600 signatures on the petition. Please sign it if you haven't yet done so.
• There have been another nine signatures on Early Day Motion 105, including the first and so far only coalition member - Mike Hancock MP (Lib Dem, Portsmouth South) - and Green MP Caroline Lucas (Brighton Pavilion).

Earlier in the day, Lorely Burt MP (Lib Dem, Solihull) asked Nick Clegg MP (Deputy PM) about the proposals. His answer was fairly predictable, of course, and again hinted that they might drop or significantly cut back the proposal.

The adjournment debate itself was begun by Caroline Flint MP (Labour, Don Valley), who had earlier that day written this article for the Independent. Several other Labour MPs made statements in the debate.

Crispin Blunt MP (Conservative, Reigate) did the replying for the Government (and was the only person speaking in favour of the proposals during the debate). gorilerof3b and Sian at UKFeminista both have excellent analysis on why his arguments are incoherent.

The coalition as a whole seems to be having difficulty putting forward a consistent line on it, with the initial statement in Parliament by George Young MP, David Cameron MP's response at Prime Minister's Questions, and the two responses today not having much in common. I hope this suggests that even at a senior level in the government there's not that much enthusiasm for the idea and so more chance that we can get it dropped.

One of the areas in which Crispin Blunt MP suggests that there is not sufficient evidence (which it appears means "he has not tried hard enough to find evidence" rather than "there is no evidence") is in the prevalence of serial rapists. Here's the particular bit of his speech.

Lisak and Miller's paper on the subject provides fairly clear evidence on the subject - the majority of undetected rapists were serial rapists who had committed a mean of 5.8 rapes each. (And, of course, some of the non-serial rapists might well just not yet be serial rapists). He references other studies showing that the pattern for convicted rapists is similar.

Another piece of evidence for most rapists being serial rapists is the sheer numbers involved. Earlier, I roughly estimated the annual number of rapes as being around 210,000 based on British Crime Survey data. We know from the same sources that around 98% of rapists are men.

The British Crime Survey covers (it will be extended to younger people soon) ages 16-59. Let's assume that as the estimate above includes no victims outside that age range, it also includes no perpetrators. So, around 210,000 rapes a year are committed (and this figure is relatively stable over time). Over the lifetime between 16-59 of a person, therefore, around 9.2 million rapes will be committed. Let's round this down to 9 million to give a conservative estimate of how many of those were committed by men.

On 2009 figures (Flash, so accessibility may not be great, but the raw data is also available), there were just over 18 million men in that age range, a figure that is also not expected to have massive changes over time.

So, either Lisak and Miller are right, and the majority of rapes are committed by serial rapists, or Lisak and Miller are wrong (or right about the USA where this research takes place, but the UK is for some reason very different), the majority of rapes are committed by one-time rapists, and around half of the male population of the country either needs to spend a while in jail or will do soon. (Yes, using Lisak's figures and those of other studies we find that around 1 in 10 men are rapists, which is only marginally better than "1 in 2", and similarly impractical in its implications for the prison system).

I've sent the following message to the Ministry of Justice via the general enquiries email - general.queries@justice.gsi.gov.uk. I'm also sending a message with similar information to my own MP.

Dear Crispin Blunt MP, Parliamentary Under-Secretary of State for Justice,

In the recent adjournment debate regarding Government proposals to give anonymity to rape defendants you said (HC Deb, 7 June 2010, c155) that:

[...] when I asked for evidence of how many rapists were serial offenders, and what proportion of convicted or charged rapists might fall into that category, there appeared to be insufficient data to form a reliable evidential picture

You may be interested to read the paper "Repeat Rape and Multiple Offending Among Undetected Rapists" by Lisak and Miller published in 2002 in Violence and Victims (Vol 17. No. 1). If you do not have access to that journal, the paper is available online at http://www.publicintegrity.org/investigations/campus_assault/assets/pdf/Document5_Lisak_study.pdf

This paper answers this question - in summary, the average rapist has committed around 4 rapes, with the vast majority of rapes being committed by serial rapists. The findings have been replicated elsewhere, for example in the 2009 paper "Reports of Rape Reperpetration by Newly Enlisted Male Navy Personnel" by McWhorter, et al., published in Violence and Victims, Vol. 24, No. 2. You will also find several references in Lisak and Miller's paper to earlier papers which researched the prevalence of serial rape (again, very high) among convicted rapists.

There is some possibility that Lisak and Miller's findings in the USA would not be replicated in the UK, although the two countries have similar statistics on many other aspects of rape perpetration and detection, and approximate calculations based on British Crime Survey data and other studies on reported and unreported rape suggest that the figures for the UK are likely to be similar to those found by Lisak and Miller.

It would, however, be straightforward and inexpensive to carry out similar studies in the UK if you believed that there was likely to be a significant difference.

I remain concerned that these proposals have been brought forward at all, and been given a place in the Programme for Government that effectively forms the coalition's manifesto, if it is your opinion that there is not yet sufficient evidence regarding some of the crucial questions surrounding the proposal such as the prevalence of serial perpetrators. Would you be able to give a guarantee that no proposals to introduce anonymity for defendants will be brought forward until independent research has been carried out on these questions?

Yours sincerely,

[me]

...and to my MP

Dear Roberta Blackman-Woods MP,

Thank you for your recent letter on this subject, and for the work that you and your colleagues have been doing to oppose this idea, which appears from the contradictory statements made by various members of the government to be having an effect.

I read with interest the recent adjournment debate begun by your colleague Caroline Flint MP, and the responses by the government delivered by Crispin Blunt MP.

One of the statements that Mr Blunt made was that there is insufficient evidence on the prevalence of serial rapists, both in general and relating solely to convicted rapists. Since it is unlikely to be the first time this claim is made, if you have not already seen it, I would like to draw to your attention a paper by Lisak and Miller published in 2002 in the journal "Violence and Victims".

This paper, "Repeat Rape and Multiple Offending Among Undetected Rapists", shows that the vast majority of rapes are perpetrated by serial offenders, with the average offender committing around 4 rapes. It also contains numerous references to other papers on the subject, including two specifically looking at the behaviour of convicted rapists.

If you do not have access to the journal, this paper is available online at http://www.publicintegrity.org/investigations/campus_assault/assets/pdf/Document5_Lisak_study.pdf

While this paper describes research carried out in the USA, the UK has very similar levels of prevalence of rape in general, and so the burden of proof should be on the government, if it does not believe that Lisak and Miller's study and other similar studies are applicable to the UK, to fund similar independent research in this country before proceeding with any variation of its proposals.

Again, thank you for all the work that you and your colleagues have done so far on this issue.

Yours sincerely,

[me]

Anonymity for defendants, continued

More on the defendant anonymity issue.

[trigger warning]

There's a briefing paper produced by Parliamentary researchers that nicely sums up the situation up until now with regards to anonymity. It's well worth reading.

Cath at Too Much To Say For Myself, along with news that Cameron may be backing off the idea slightly, gives a link to this piece by Vera Baird (former solicitor general).

I've updated the countering bad arguments post with a few more arguments.

The campaigning that has been done so far appears to be having an effect and the proposal has been raised in Parliament a few times so far:

Rosie Winterton MP (Labour, Doncaster Central), raised the issue in the debate on the Business of the House on the 27th May. The coalition reply from George Young MP (Conservative, North West Hampshire) was:

That is why we have said that we will undertake a careful and sensitive analysis of the options and implications before we bring any proposals to Parliament.

...which is not at all what appeared in the Programme for Government. They do appear to be backing down a bit under the pressure, which is good.

Kerry McCarthy MP (Labour, Bristol East) continues to ask questions in the same debate, as does Fiona Mactaggart MP (Labour, Slough), who proposed the Early Day Motion mentioned earlier.

Note, again, it's only women who seem to consider the issue important enough to raise, though it's not impossible that some male MPs who would have mentioned it were not called upon to speak in the debate.

On 2 June, Harriet Harman MP (Labour, Camberwell & Peckham), as acting leader of the Opposition, used one of her allocated questions to the Prime Minister to ask about this issue. This part of his response is interesting:

We came to the conclusion that there was a case for saying that between arrest and charge there was a case for anonymity.

[...]

We all want the same thing, which is to increase the number of successful rape prosecutions and to send more rapists to jail: that is what this is about.

Both of those are useful quotes - the first, because it is a definite backing off from the Programme for Government quote referring to "defendants" (who are by definition charged) - the second, because it provides a very useful point to criticise the proposals: the reason defendants do not have anonymity is because it did the opposite.

So, good work from several Labour women there. I do wonder if any of the previous or likely future male Labour leaders would have given the issue such a high priority. Only Diane Abbott, of the potential leadership candidates, has signed the Early Day Motion, and it's looking somewhat unlikely at the moment that she'll even get enough nominations to be on the ballot paper.

Sunder Katwala at Next Left points out that in the vast majority of cases, pre-charge suspects usually have anonymity anyway (and that in the cases where they don't, there's usually a very good reason)

There's now an adjournment debate¹ scheduled for 7 June on the subject, too.

¹ Parliament, ostensibly debating whether or not to adjourn debate until the following day, actually chats about something else entirely for a little while, and then votes to adjourn. It's nice that there are mechanisms for topical issues to be discussed in Parliament, but a less evolutionary approach to things might have given a more legislative body whose proceedings are more comprehensible to outsiders.

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?
• Anonymity should be for defendants in all crimes (or all "serious" crimes)
• Innocent until proven guilty! Eleventy!
• There are lots of false allegations of rape
• Anonymity would better protect the reputations of people who were acquitted
• The consequences of being accused and then acquitted of rape are more serious than those for other serious crimes
• The conviction rate is actually around 58%
• Lots of things weren't in the manifestos

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.