The previous Government said in the Coalition Agreement that it would extend anonymity in rape cases to defendants. However, having undertaken an assessment of the evidence, it concluded in 2010 that there was insufficient reliable evidence to justify a change in the law.
Despite this, calls for anonymity for those accused of rape have continued.
People who allege they are victims of certain sexual offences receive lifelong anonymity. It is a criminal offence to publish the complainant’s identity or any information that might lead to the complainant being identified.
Some argue that it is unfair that potentially innocent defendants do not receive similar protection in the absence of any finding of their guilt. It was partly on this basis that anonymity was provided to defendants as well as complainants in rape cases in 1976.
Parliament repealed anonymity for defendants in rape cases in 1988. This followed a Criminal Law Revision Committee report in 1984 which said that the argument about equality between rape defendants and complainants was not valid “despite its superficial attractiveness”.
It is argued that comparison should be made not between a rape defendant and alleged victim, but between a rape defendant and a defendant charged with another serious crime.
If defendant anonymity is to be provided for defendants in cases of rape, why would this not also be appropriate in respect of other, non-sexual, offences?
Why, if the particular nature of rape and sexual offences are a reason for providing special protection to complainants (as opposed to complainants of other, non-sexual crimes), should this particular nature not also be a reason for special protection for those accused of these crimes?
Those in favour of reform argue that there is a particular stigma attached to allegations of sexual offences, as compared to allegations of other serious crimes, which result in harm to the defendant.
Individuals who have been acquitted of rape have told of the devastating effect on their lives of being named as a defendant in a rape case.
Those who oppose change counter that the public well understand the principle of ‘innocent until proven guilty’ and the distinction between being accused and being convicted.
But even if the public do recognise this distinction, advocates of reform argue, acquittals tend not to receive as much public attention as the details of the allegations and the trial.
Opponents of reform have questioned whether the call for defendant anonymity in rape cases is linked to what they say is a mistaken belief in high numbers of false accusations of rape. They have said that for defendants to be treated differently in rape cases could imply that rape complainants are less reliable that complainants in other offences.
The Labour Government, during the passage of the Sexual Offences Act 2003, gave as one reason for not changing the law that it avoided giving the impression that there is a presumption of doubt about the credibility of the complainant in sex offence cases.
Some who say that the law should not be changed highlight the importance of open justice. It is said that the current position promotes victim confidence in the criminal justice system and allows justice to be seen to be done. Some worry that anonymity would lead to ‘secret charges’.
There are already some protections in place for defendants, such as the rules on crime reporting that restrict what can be reported during a trial.
Naming defendants can also enable, or in some cases encourage, other potential victims and witnesses to come forward to report offences.
One suggested compromise would involve providing generally for the anonymity of defendants in sexual offence cases, with a judge being able to make an exception and name the defendant if this were in the interests of justice, for example to help identify other potential victims.
Debate set to continue
With defendant anonymity in rape cases having been introduced and then repealed, and the previous Government initially planning to change the law and then concluding there was insufficient evidence on which to base a decision, it seems likely that debate will continue.
Since the Sexual Offences (Amendment) Act 1976, people who allege they are victims of rape have been automatically entitled to lifelong anonymity once their complaint has been made.
This has since been extended to certain other sexual offences.
The 1976 Act also provided defendants in rape cases with anonymity, but this was repealed by the Criminal Justice Act 1988.