The Sunday Times

May 23rd, 2010

Name rape suspects and justice becomes the victim

A false allegation of rape can ruin a man’s life. Even if he is tried and found not guilty, he will still remain suspect in many people’s eyes and perhaps at home, too. Rape is notoriously difficult to prove, even when the defendant is clearly guilty, and people always say there is no smoke without fire. So it is almost impossible for a man to survive an accusation of rape without a stain on his name: there will be whispers and worse for the rest of his life. Only a false allegation of paedophilia could be worse.

That must be obvious. So one might imagine that the government’s proposal last Friday to grant defendants in rape cases anonymity until proved guilty would be welcomed. On the contrary, activists in the rape lobby were furious. Ruth Hall, of Women against Rape, angrily described this new policy as an insult. It would stop women reporting rape, she claimed, and reinforce the misconception that lots of women who do report rape are lying.

This is nonsense. The subject of rape has a curious way of making the most rational people throw away the most basic principles of justice and sexual equality as well. Surely the most misandrist of feminists would accept that the principles of equality before the law and equality between men and women are not lightly to be dismissed. After all, equality is what the feminist movement has fought so hard for, and the rape lobby is one of the daughters of feminism. And surely they would agree that the presumption of innocence until proved guilty is a central principle of English law.

What is legal sauce for the goose ought to be sauce for the gander. The law rightly protects women in rape trials from the particular miseries involved; it should equally protect male defendants from the corresponding miseries, because every man is innocent until proved guilty.

Of course the man’s name should be made public if he is found guilty, just as the woman’s name would be made public if he were found not guilty. It is only right that a convicted rapist should face the hatred and contempt people feel for him: that is part of his punishment. The government’s proposal would simply mean that a man faced these penalties only after conviction. It would avoid advance trial by media lynch mob.

It’s very difficult to understand why anybody should oppose such a just reform. Baroness Kennedy, who does, explained on Friday that although it is a principle in law that there should be no anonymity in a system of open justice, a number of exceptions have been made for cases in which the victim is particularly vulnerable, such as those involving children or rape. But surely the male defendant in such cases, if innocent, is also particularly vulnerable. However, Kennedy says to equalise this would be quite dangerous: it would be detonating the principle of openness.

This logic defeats me. Surely the principle has already been tweaked — if not detonated — in favour of women and children, and tweaking it equally for men in such cases would make no difference. Kennedy’s other argument was that public exposure of the rapist encourages other victims to come forward. But under the new policy he would still be publicly exposed, if and when convicted, and with the same effect on other victims. They might be more likely to come forward if they knew a case against him had already been successful.

Clearly what angers the rape lobby (and the rest of us) is that a lot of men get away with rape, either because women can’t or don’t report it, or because the courts can’t or don’t prove it. It is also true that for years the courts and the police were offensively unjust to many of those women who did find the courage to report rapes and subjected them to ordeals almost as distressing as the original attack. But these facts do not justify ignoring the truth that some men are innocent of rape and some women are lying. Even if the numbers are very small, that tiny number of innocent men is entitled to due process and equal protection; that means, of course, extending it to everybody, including the vilest of rapists, as it does to liars.

The rain falls upon the just and the unjust. So should the proper protection of the law.

No one knows, however, what the numbers are. Women against Rape states that false accusations of rape are “extremely rare”. Yet the Stern report on rape complaints, commissioned by the Equality and Human Rights Commission under Harriet Harman and published earlier this year, made it clear that it is not known whether there are more false allegations of rape than for other offences and recommended independent research.

It may well be, as Hall angrily claims, that there is a misconception around that women who report rape are lying. I rather doubt that, but even if there is, police and the courts are no longer allowed to take that attitude and usually don’t. As the Stern report said, “attitudes, policies and practices” among the public bodies concerned “have changed fundamentally and for the better”.

One of the main misconceptions concerning rape is, rather, to be found within the rape lobby about the conviction rate, as Baroness Stern pointed out. Many, many people “in the field” believe that the conviction rate for rape in England and Wales is 6%. Some, she remarks, find this figure helpful as a campaigning tool; others think it dissuades victims from coming forward. But this figure is quite wrong.

The true figure is 58%: that is the percentage of people standing trial for rape who are convicted. It excludes, of course, all those allegations that did not get to court, that may well have been true but were difficult to establish, or possibly mishandled. Nonetheless, it’s very misleading to use a conviction rate of 6% to dominate the public discourse without explanation or analysis, and it has, as Stern drily says, “been to the detriment of public understanding”.

In any case, the numbers, whatever they are, make no difference to the principle of equality under the law. Nor does any failure of public understanding. The law is the law and it should treat men and women equally dispassionately, or equally protectively, particularly in the nastiest cases — such as rape.

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