Untangling the vexed question of anonymity in sex cases

The recent prosecutions of British celebrities for sex offences have highlighted the differences between UK anonymity laws and those in Ireland, which prohibit the identification of rape accused before conviction.

The failed prosecutions of two Coronation Street actors have reignited a debate in the UK about whether rape accused should continue to be named pre-conviction. And while Ireland shows little desire to adopt the UK system, our anonymity laws are not without their problems.

Irish law states that those accused of rape can only be identified publicly if convicted.

However data shows that even after conviction, the majority of rapists are never named publicly, due to our strict rules protecting complainant’s identities.

An analysis of data from 2011 to present shows that 59 per cent of those convicted of sex crimes in the Central Criminal Court are not named in the media after conviction.

This is because identifying such people could lead to the identification of the victim, either because the offender was a relative, or could be easily linked to the victim in the mind of the public.

It is a feature of Irish sex crime that a huge proportion of sex offences occur within the family. In the data studied, 34 per cent of victims were abused by family members. In other words, naming the abuser in the media could very easily lead to victim identification.

However, sometimes victims will allow their abuser to be named even if it might identify them; the data shows that 15 per cent of those abused by a family member consented to their abuser being identified after conviction.

Irish law has a long established practice of demanding complete anonymity in rape cases before conviction. On the face of it, it appears to be an uncontroversial system; someone is only named if guilty and then only if it doesn’t identify the victim.

However an examination of the UK debate shows there are arguments to be made for removing automatic anonymity for accused. Victim campaigners claim that naming an alleged offender can lead to other complainants coming forward, as shown in the case of Jimmy Savile. They also see the granting of anonymity for accused rapists as perpetuating the myth that many women make false rape claims.

These arguments are curiously absent from the Irish debate; in fact there is little debate at all. One reason for this could be the size of our population.

Caroline Counihan of Rape Crisis Network Ireland (RCNI) feels that pre-trial anonymity for accused is vital in this country because Ireland is so small and many rape cases come from small rural communities.

“It can be difficult enough for the complainant who finally plucks up enough courage to go to the guards. It’s a nightmare, and it’s just not going to help if their rapist is named and shamed in the local or national press even before conviction,” she said.

Ms Counihan also believes our Constitution is a factor. The right to a citizen's good name means that stripping anonymity pre-conviction "is simply not a runner here". The Rape Crisis Centre takes the same position, while even Fiona Doyle, who was raped by her father for 10 years and went public after his conviction, is conflicted on the issue.

“I’m kind of for it and against it, I think my father was protected too much,” she said. “But I actually think it would be unfair to name them, because mistakes do happen and people have been accused in the wrong and I think it would be very unfair to label them as a rapist or paedophile.”

While it appears there isn’t much appetite for naming rape accused here, there are other issues in our anonymity laws which many would like to see changed, such as the seemingly arbitrary granting of anonymity for some sex crimes and not others.

Rape, defilement and incest offences are the only sex crimes that carry automatic pre-conviction immunity. There is no doubting rape is one of the most damaging crimes on the statute book, however in terms of violence and depravity it is often matched by the supposedly lesser offence of sexual assault.

This leaves us with the strange situation where a man accused of violently sexually assaulting a woman can be named while a man accused of raping her retains his anonymity. Surely both crimes are just as damaging to the good name of a person who is innocent until proven guilty.

Barrister and legal academic Tom O’Malley believes that when the law was introduced, the thinking was that sexual assault was seen as a more minor offence.

“The reasoning at the time was that in the hierarchy of sexual cases, it was seen as less serious, as reflected in the fact that at the time the sentence was five years,” he said.

“In recent years they’ve ratcheted up the seriousness of it and the penalties but they still haven’t seen fit to include the anonymity for the accused,” Mr O’Malley, of NUI Galway School of Law, added. “It’s something that could be looked at in future in any review of the sexual offences law.”

Senior counsel Sean Gillane has acted in many such cases and believes the current system "makes no sense at all". "It just seems to be something that was overlooked," he said. "They extended the protection for complainants from rape to include sexual offences generally but they never extended that protection for accused. There are many sexual assault cases which are, for want of a better phrase, worse than some of the rape cases you see."

A second area for possible examination concerns the misconception that rape victims have a legal right to go public after their attacker is convicted.

Although the phrase “the victim waived their right to anonymity” is often seen in news reports, it is not entirely accurate. The Criminal Law (Rape) Act 1981 and its amendments grant no right to a victim to allow themselves be identified.

According to a document from the Law Reform Commission there are two reasons the law doesn't include this provision. Firstly, it was thought that adding it could "sow confusion in the minds of complainants generally as to whether they could protect their identities in a rape prosecution".

Secondly, it was thought that giving victims the option to go public might leave them open to “pressure or inducement to allow their identity to be revealed”.

Of course victims can, and often do, go public. A practice has arisen where a barrister for the DPP will tell the court at conviction that the victim wishes to “waive their right” and the judge consents.

Speaking from experience, Ms Doyle believes the decision shouldn’t be made by the judge.

“It’s a very personal choice,” she said. “I was quite annoyed and angered that I didn’t have the right to make the decision; it was put in someone else’s hands.”

Mr Gillane agrees that it shouldn’t be a decision for the court: “The odd feature of it is that it tends to be indicated in open court by counsel for the DPP. What has counsel for the DPP got to do with it?” he said. “Or indeed what has the court got to do with it? It’s just one of those practices that have grown up.”

Ms Counihan believes the system should be examined but points out that judges don’t tend to interfere with victim’s decisions. She said it would be better if the right was explicitly granted to the complainant and that the upcoming Victim’s Charter and the new Criminal Law (Sexual Offences) Bill might provide the opportunities to do that.

The Rape Crisis Centre operate a 24-hour confidential support service on 1800 77 88 88.



In numbers: Sex crime convictions at Central Criminal Court from 2011 to February 7, 2014
150
Number of cases in total

59%
of those convicted (88) were not named

41%
of those convicted (62) were named

3%
of victims (5) consented to themselves being named

34%
of rapists (52) were related to the victim