This last few weeks have seen a rise in discussion around what appropriate procedure should be in cases of sexual assault or rape allegation.
Two very different schools of thought have emerged, with the driving force of change coming in the form of previously accused Cliff Richard and fellow celebrity Paul Gambaccini, with Cliff having stated publicly that previous unproven allegations have ‘tainted’ his life despite charges being dropped.
On the opposing side of the argument are mostly those who stand for the rights of women and female victims. Their argument in this instance is that granting anonymity would prevent other victims from coming forward and solidifying the existing case.
One such notable organisation that has featured in the news this week is the ‘End Violence Against Women Coalition’. A cursory glance at their chosen title might suggest one of many things about how impartial they are with regard to the realities of violence (for context, it has been continuously proven that men are the primary victims of violent assault, and account for up to half of all victims of Intimate Partner Violence), but in their statement requesting that the law around anonymity not be changed, they appear reasonable and contrite, at least on the surface.
In a written statement on their website they say:
“The presumption of innocence is a cornerstone of our justice system and none of us want to see it undermined, ever. Sensationalist media reporting on sexual violence may add to the feeling of harm to reputation, and also helps perpetuate myths about what ‘real’ victims and ‘real’ perpetrators of abuse are like.”
“We know that in the cases of Rolf Harris and Stuart Hall for example, witnesses who came forward did so because they saw there were other accusations and until that time had believed they were the only victim.”
While this may seem in line with reason, it is in fact self contradictory. On one hand we are told that the presumption of innocence should remain and is crucial to our justice system, then on the other hand we’re told that we can’t have anonymity in case other people may need to come forward with additional accusations.
In short, the exact opposite of a presumption of innocence, is the expectancy of additional accusation.
Further to this point, for every Rolf Harris and Stuart Hall we’ve encountered throughout history, we have a conflicting catalogue of well known names who saw their accusation rate soar once the initial claim had been made – With many of the additional claimants (if not all of them) being found to have lied about every aspect of their alleged assault.
For a specific example refer to the on-going Bill Cosby case. With this trial still being conducted it could of course be the case that Cosby is guilty, that much remains to be seen. What we do know however is that up to 7 of his accusers are in the process of being sued, with one in particular being a proven liar in the case due to telephone and flight records showing that Cosby was 2,500 miles away from the location she claims the assault took place on the date she specified:
Needless to say, additional accusations should not be treated in a ‘quantity guarantees quality’ manner, and rather each individual accusation should be tried by it’s own merits.
Another criticism of the call for change comes in the form of claiming that anonymity for a defendant would set a unique precedent in legal proceedings, given that defendants of no other crime get such advantages.
While this is true, it must be accepted that accusations of rape and sexual assault carry with them their own unique stigma and indeed their own unique hurdles.
Our Justice System rests (or at least is supposed to rest) on the previously mentioned presumption of innocence, and the burden of proof. Whereby it falls on the claimant to provide evidence of their allegations. The reason for burden being placed on the claimant is because in most cases, the claimants position is that some recognisable action took place, against them or to their detriment. The defendants position is normally that this action did not take place – In this scenario it is logically impossible for the defense to provide evidence of a non-evident, it simply cannot be done, hence the burden falling on the side of the court room that’s making the claim.
This end of rape and sexual assault allegations remains problematic for all involved. It is inherently difficult to prove that such an event took place, short of video evidence or an impartial witness statement. Likewise, it’s impossible to prove it didn’t happen, other than your word, so cases usually boil down to a battle of claims.
This problem has resulted in it’s fair share of both wrongful/questionable convictions and also a hefty portion of not guilty verdicts. Frustration with the process is understandable.
However given this unique dichotomy, it stands to reason that unique processes might also be introduced, especially as we have a wide range of case studies with which to refer when it comes to careers and reputations being ruined.
The issue with rape and sexual assault becomes even more convoluted when we consider how easy it has become to withdraw consent, and make a claim after something consensual has occurred. Usually a defendants greatest protection is use of an airtight alibi, as in the case of Bill Cosby, demonstrably being in another location at that exact date and time.
This however does not apply in cases where both parties, at the time, believed a consensual act was taking place. No alibi is available and the defendants only position is to admit they were at the ‘crime scene’ and with the ‘victim’ – Not exactly a defense anyone should feel confident in.
With these many intricacies and high difficulty in providing or effectively refuting evidence, we have naturally produced a situation where people are being convicted based on nothing but the word of someone with no unique credibility, case in point NFL player Brian Banks, who was wrongly imprisoned for 5 years based on the testimony of one person who later admitted they lied about the entire event:
For a further example of one party believing an act was consensual, look back to last week toward the Ched Evan’s case. A case where the defendant never denied intercourse with the claimant, and where the claimant never even made an accusation of rape – Yet we saw an aspiring young footballer cast into jail for 2.5 years, only to be met by vilification when his verdict was over turned.
And what was the main source of outrage in the Evan’s case? For the previously mentioned End Violence Against Women Coalition, it was the use of the claimants previous sexual partners, who helped corroborate Evan’s story about the claimants attitudes toward sex, EVAWC said:
“We are very concerned at the precedent which might have been set in this case for allowing sexual history of complainants to be admissible evidence”
In essence, EVAWC’s complaint was that other people with experience of the claimant were able to come forward and provide evidence. But isn’t the testimony of additional parties exactly the reason why they think accused men shouldn’t be granted anonymity?
Which is it?