Getting the balance right between the rights of the accused and those defending their reputations in cases or potential cases of sexual crimes has always been difficult. Indeed, the balance has moved around historically, and continues to be argued. It is one of the areas of justice where the arguments never seem to come to equilibrium for very long, as parliament and the judiciary adjust things along the way.
So the latest argument by the group Falsely Accused Individuals for Reform (Fair) has to be viewed in that perspective. Backed by Sir Cliff Richard and Paul Gambaccini and organised by the son of the late Labour peer Lord Janner, the organisation has a parliamentary petition calling for people who are suspected of sexual offences to be given anonymity until they are charged unless there are “exceptional circumstances”. It needs 100,000 signatures to be considered for a debate in parliament.
No doubt the campaign will hope that this will eventually lead to a wider public debate and a change in the law. Between 1976 and 1988, by way of background, individuals accused of rape were granted anonymity, though only their accusers are today.
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Recent high-profile scandals and stories about high-profile figures in entertainment, politics, religion, sport and elsewhere have prompted more discussion about the effects of the current legal conventions.
It is probably true that more people are coming forward today, especially with accusations about historic abuse. But this is not necessarily a bad thing. Indeed, the historically poor rate of prosecutions and convictions in sexual offence cases suggests that this is a long overdue, and only probably partial, corrective to a culture in which the victim felt more ashamed and fearful than their abuser.
Women, in particular, have suffered hurt, pain, injury and injustice in countless instances for decades. The very fact that a potential perpetrator might lose their anonymity should work as a powerful deterrent for some.
More than anything, the culture of reporting and pursuing sexual offence cases has improved because of the lasting effects of the appalling Jimmy Savile affair, the scale and longevity of which still has the power to shock some years after his death. It shamed a nation and altered the way we see the world. It also gave rise to the long-running official inquiries into VIP or institutional sex abuse cases – a field so vast it will take years to complete.
In general, the recent tendency has been to err on the side of victims and to improve the delivery of justice, but it is not yet clear that this has gone “too far”. No doubt there are more borderline accusations that have also emerged alongside the more blatant assaults. A very small number of accusations are the work of out-and-out fantasists, or perhaps those looking for some sort of financial gain for concocting more or less plausible but fictitious stories.
Still, the solution to this flaw does not necessarily lie with granting anonymity until charged. The answer is for the police to treat such claims with more speed and decisiveness than has sometimes been the case. We all know there are people given to conspiracy theories, grudges or blackmail, and the police (and the press, for that matter) should able to distinguish between them.
Gossip and rumours have always swirled around the lives and habits of the famous, and the not so famous, and this will continue whether some notional anonymity is imposed. In the global digital age, those in the media world will know that those outside will find out, even under the most restrictive injunction.
It also has to be conceded that Britain’s strict libel laws mean that, as with Savile, the truth about some public personalities emerges only after their death. It is sometimes even more outrageous than what was guessed at when they were alive. Too many have escaped justice through the sheer passage of time.
Besides, as the terms of the petition suggest, it can also be appropriate to publicise a name to bring forward more credible and compelling examples of crimes and wrongdoing. If the petition allows for “exceptional circumstances” for such a naming – and such circumstances occur a good many times, there is no quota to be applied – then there is little point to the petition in any case.
Who is to say what are “exceptional circumstances”? Judges, then the media might not accept such a curtailment of free speech or fair comment. Where does parliamentary privilege, and its reporting, apply in this world? These are further balances to get right.
The truth is that, with rare exceptions, individuals do not go to the authorities with serious accusations of sexual abuse lightly. It is traumatic and often physically, intimately intrusive. And wasting police time is still a crime.
The long experience of the criminal justice system is that far too few people do, even in violent cases and even in the post-Savile age and the #MeToo movement, come forward. It takes some bravery, even today, for an adolescent boy to go to his parents and talk about what a priest or football coach might have been doing. Female actors and models will still feel nervous about telling the authorities about molestation, for fear that they will not be believed, not have their pleas taken seriously and, either way, will see their careers destroyed. MPs and ministers who use their power for sexual gratification may be thinking twice about it in today’s climate, but introducing anonymity might make them more ready to take the chance.
So the Fair organisation makes some reasonable points, and draws attention to a more confused scene than used to be the case. But its case for the petition and an ultimate change in legislation on anonymity is not proven.
The danger remains that society would then lose some of the hard-won gains in the pursuit of justice in sexual abuse cases. The rights of vulnerable people, including children and people with disabilities, to be kept free of sexual abuse need to be safeguarded, as history clearly shows. The current system is certainly flawed and plainly asymmetric. But, on balance, it also remains fair.