Wendy McElroy: Publishing the Names of Rape Accusers
On May 20th, the new U.K. coalition government pledged to change the law so as to extend anonymity in rape cases to cover the accused as well as the accuser, at least until and unless a conviction occurs. A firestorm of controversy has ensued.
The law should not determine what information may be broadcast or revealed to the public. Especially in America, however, the practice of naming those accused of sexual assault while protecting accusers has evolved largely as a tradition. But is it a tradition that encourages false accusations and unjust convictions? If so, it is time to break with tradition.
The prospect of doing so has caused a firestorm of controversy in the U.K. which mirrors the debate that occurred in America during the 2006 Duke Lacrosse rape case in which the lives of three demonstrably innocent young men were almost destroyed by a false accuser, to whom the media first accorded anonymity. As the injustice became obvious, however, various outlets publicly named the woman.
Before examining some of the key arguments, it is important to consider what are the possibilities regarding anonymity or disclosure? Only four exist: both parties are named, neither, only the accused, or only the accuser. Since the option of naming only the accuser never arises, three possibilities remain. (As I argue later, I believe both parties should be identified once the accusation has become a public matter, involving police and the court system.)
Those who want to identify both parties usually contend that false accusations of sexual assault are common place and that protecting the identity of an accuser encourages injustice. Anecdotal information seems to support this contention. For example, as of January 21, 2010, 249 U.S. prisoners have been exonerated by the Innocence Project through DNA testing; almost all of their convictions involved a form of sexual assault.
Unfortunately, statistics on false accusations are notoriously difficult to obtain and vary wildly. (I tend to place the figure at about 20% but, again, that is merely an estimate based on my own review of studies and reports.)
At the high end of estimates is a study by the now-retired Purdue University sociologist Eugene J. Kanin who worked in cooperation with the police in a small metropolitan town. Kanin examined reports of forcible rape from 1978 to 1987 during which 109 accusations were lodged; 45, or 41 percent, were discarded as false. (Note: ‘unfounded’ cases were counted as ‘false.’) Why would someone lie? Three factors commonly motivated the false allegations: revenge, the need for an alibi, and a desire for attention.
At the low end is the much-cited but vaguely supported “feminist” figure of 2 percent, which was popularized by Susan Brownmiller’s 1975 book on sexual assault,”Against Our Will.” There, Brownmiller claimed in passing that false accusations in New York City had dropped to 2 percent after police departments began using policewomen to interview alleged victims. Although the figure subsequently appears in many articles and in legislation such as the Violence Against Women Act, legal scholar Michelle Anderson of Villanova University Law School reported in 2004, “no study has ever been published which sets forth an evidentiary basis for the two percent false rape complaint thesis.”
Two defenses are commonly offered for maintaining anonymity for the accuser: 1) to protect the victim from embarrassment; and, 2) to encourage other victims to come forward in the future.
The first defense rests on the compassionate belief that a rape victim should not be brutalized a second time by publicity but it fails by assuming precisely what is in question. Is the accuser a victim? Is the accused guilty? Until the evidence has been openly examined, these questions cannot be answered. Moreover, sympathy for an alleged victim does not explain why equal consideration is not extended to the accused who should be presumed innocent. Reporting of name might well devastate an innocent life, even if he is not convicted. If compassion protects the accuser’s identity, then logically it should also protect the accused.
The second defense for the accuser’s anonymity is to encourage accusers to come forward. But there is nothing positive about increasing the number of accusations unless they are accompanied by standards that maintain the accuracy of evidence and the rights of the accused. By lowering standards of accountability, it seems likely that false reports would increase. Moreover, the anonymity decreases the likelihood of a fair trial by disadvantaging the accused. For example, when an accused rapist is publicly named, other victims can come forward to add their testimony. By contrast, when an accuser remains unnamed, witnesses who could discredit her account may be unaware of the proceedings.
What is the solution? First and foremost, no law should be involved. But traditions can be unjust and, when they encourage false accusations or bias a trial, those traditions should be violated. New ones should be forged. Again, once the accusation has become a public matter, involving police and the court system, the names of all parties should become also be public. The demand for transparency in judicial proceedings does not reflect a lack of compassion for or an indifference to victims. Quite the contrary. The right to a public trial is one of the strongest safeguards of justice; and nothing expresses concern for victims more than ensuring judicial fairness.
In America, the media is not and should not be required to protect or to disclose the name of anyone. But a tradition that encourages injustice and should be discarded. Name both the accuser and the accused. A free and responsible press should do no less.
Source: http://www.ifeminists.net/e107_plugins/content/content.php?content.739
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“the 2006 Duke Lacrosse rape case in which the lives of three demonstrably innocent young men were almost destroyed by a false accuser”???
Actaully their lives WERE destroyed while the real rapist(of the Lacrosse players) was rewarded and protected…
Great article though!