Rapists right to anonymity

[Saffron]

Originally posted by val lavender@7th January 2005 - 07:26 PM
I feel that there are several changes to the law required, and having gone through the hell of a false accusation of rape I feel qualified to speak on this subject.

1/ Either the anonymity of persons involved in a rape trial should be removed fron the accuser or it should be applied to the alledged perpetrator up until the point when they are found guilty. Why should someone who is the victimof a false allegation have to suffer at the hands of the media until they are found guilty?. Removing the anonymity of accusers would probably help to reduce the number of false allegations. Additionally, social Services should be prevented from issuing edicts to the accused until a verdict is returned.
2/ The "rape shield" laws should be revoked. The accused should have the right to see their accuser, it is all to easy to sit beheind a screen or look into a camera rather than have to face a court.
3/ Section 41 Judges Rulee of evidence should be revoked. If the accused's previous sexual history and conduct can be brought into a case then so can the behavior and habits of the accuser.

4/ The CICA compensation scheme should be expanded to include the mental damage caused to victims of false allegations. At present, whilst it acknowledges the concept of mental injury if associated with a physical act it does not recognise mental injury as a seperate issue.

5/ The UK is the only country in Europe that does not have a specific crime of making a false allegation - this should be rectified. At present we have to rely on the common law offence of attempting to pervert the course of justice, wastage of police time [ the Home Office currently suggest that this should be applied to cases that waste more than 20 hours of police time but many police forces refuse to use this charge as they maintain that it will deter other victims from coming forward] or perjury for false evidence given in court proceedings [1911 perury act]

6/ Penalties for false accusers should reflect the likely sentance that the accused might have recieved, ie a false allegation of rape should attract a sentance of 10 - 14 years. Recent penalties for false rape allegations have ranged from the 3 years that Nadine Milroy-Sloane was sentenced to to an ?80 fixed penalty ticket given to an Essex woman who made a similar allegation that proved to be false.

7/ A nationwide, public database should be established, giving the name and details of all persons found guilty of making a false allegation. This would enable the public to be made aware of their behavior and avoid the company of such individuals.This data base should include the names of personsmaking any allegation that results in a police enquiry, whether or not the matter goes to court.

8/ A time limit should be established for the making of allegations, I suggest that this should be one years for anyone over the age of 16. The current rash of allegatios from the dim and different past where the accused has to try to prove where he was 15 - 20 years ago are ridiculous and virtually impossible to asses fairly given the passage of time and the total lack of forensic evidence.

Whilst I anticipate that the above comments will attract a fair amount of flak from the "all men are rapists feminazi brigade" who are seemingly incaperable of looking at these matters in a logical and unemotional fashion it should be borne in mind that every false allegation [home office figure indicate that the rate could be as high as 35% and if the conviction rate is used as a yardstick this could be even higher] detracts from the creedance of genuine victims and wastes police resources that could be focused on genuine crimes.

Val

Quoted post

All I can say is Hear Hear! In particular with reference to the "rape shield" offered to complainants. At my husband's trial, his "victim" elected to give evidence from behind a screen, not because she didn't want to face my husband, but because she didn't want her image broadcast to the public gallery. hmmm, maybe because she had made an allegation like this before, and didn't want to be recognised?????

The truth is that when witnesses give evidence from behind a screen, there is an implied "victim status" assumed. This is a very powerful persuasive tool to a jury, and will definitely affect their judgement.

And finally - the prosecution in my husband's case made continued and repeated reference to his sex life, but we were not allowed to question hers at all. And by all accounts it was incredibly diverse, and her sexual partners were numerous. Again, this totally undermines the "fair trial" we are all supposed to have the right to.

In the UK today, if you are accused of a sexual crime, you are no longer considered innocent until proven guilty, but the burden of proof is very much down to the defendant. Prove your innocence...

[diana_holbourn]

I agree with some of what you say, Val, and sympathise, but I think there are a few difficulties with some of your suggestions.

Firstly, it must be awful for falsely accused people to have their names published in the media, but it does at least warn of genuine rapists to beware of and so might protect some women who read them. And abolishing anonymity for the accuser might lower the false accusation rate, but at the same time, it might expose genuine victims who are still distressed by what happened to uncomfortable questioning or gossip by acquaintances. Perhaps what ought to happen is that the media ought to be prevented from mentioning names of the accused till they've been found guilty, but at the same time, protection for potential future victims of genuine offenders should be increased. Perhaps bail conditions ought to be made very strict to reduce the likelihood of them re-offending while they're waiting for their court cases as much as possible, if they can't all be kept in custody. I'm not sure what the situation regarding bail conditions is at the moment and whether it's felt that they're strict enough. But if not, perhaps if people have been accused of offending in the evening, for instance, they should be electronically tagged and have a curfew put on them till the case comes up. This would clearly be an unfortunate inconvenience to the falsely accused, but there has to be a balance.

I think there are two reasons why screens are used. Yes, it might make false accusers feel better and look more like victims in the juries' minds, but on the other hand, there are many genuine accusers who feel intimidated by the sight of their attackers and so to have them looking at them makes the process even more distressing. Also, screens prevent the friends of the accused, who possibly have hostile intent, from having a good look at them. Here's a paragraph that illustrates the problems that can arise from not having them, from a report several years ago by Victim Support, at http://www.leeds.ac.uk/law/ccjs/an_reps/anrep97a.htm

And finally, the cases I have selected to just give you some relative view of some of the problems - the problems that we have identified. A sixteen year old girl who had again been sexually assaulted by three youths and she was the only witness. She was the only person present, so she was obviously going to be the main witness for the whole of the case. She had had some preparation - she had gone along to the court and she had been shown a screen - she had opted to use screens. There is the possibility of recording evidence on video which is used as the evidence in chief, which quite an advance. There is the possibility of giving your evidence live on the day but in a separate room with a video link and there is the possibility of having screens to protect you so that you can't see the defendants while you are giving evidence. Also they can't see you. And also if the screen is in the right place the public gallery shouldn't really see you either, although the jury can. That is the way it ought to be, it doesn't always work like that. For all that, she had been shown the screen, she was sitting in the witness box and shown where the screens were, where the defendants were going to be. When she got to court the judge said to the sixteen year old girl, 'You look a big girl for your age, I don't think you need that childish stuff, do you?' and the screens were not allowed. And I can't tell you how often that has been happening. We should be getting rid of these problems by now because decisions should now be made at clear directions hearings, but it is not quite working yet - I am not quite sure what is going on, but it is not quite working yet and prior to that there were lots and lots of these cases where people prepared in one way and not allowed to use it. This case was awful - quite tragic. She gave her evidence live. The boys were convicted, but afterwards she was visited by the three girlfriends of the boys concerned and beaten up so badly that she ended up in hospital. And they wouldn't have known her if they hadn't seen her in court. There are many other examples.

I agree with increasing penalties for false accusers in principle, but I think they should only be enforced if the case goes all the way to court, in case they deter people from admitting to having made a false accusation beforehand; and the accusation would have to be irrefutably demonstrated to be false, to prevent people who's rapists were wrongly acquitted from suffering them.

[val lavender]

Dear Diane

whilst the situation described in the report you quote is terrible, you must bear in mind that the three giirlfriends of the three rapists would vertainly have known the witnesses identity where or not a screen was used. What should also be considered is the problem of reprisals against those falsely accused, particularly in rape cases.

To turn to the issue of punishing false accusers, what do you do about people who are remanded to custody because of a false allegation?

The common law definition of perverting the course of justice is "any act designed or intended to pervert the course of public justice" - by this reckoning the offence is committed long before court proceedings occur. A futher statement with regard to this is that "any course of conduct which sets in train a police investigation or may result in the arrest of an individual" constitutes an attempt to pervert the course of justice.

In any matter where the police arrest or question an individual, as a result of a false accusation, starts the stress, demination and anxierty process that is an integral part of the adversarial court process that is currently in use in the UK.

Regards


Val

[diana_holbourn]

I think it's unclear whether the girlfriends would have known the assaulted girl in the example, but the person from Victim Support giving the report seemed to think they wouldn't have if there had been a screen, and said there were more examples.

Yes, I suppose there must also be a problem for those falsely accused being identified because of the lack of a screen. It would be interesting to hear from anyone who's had that kind of problem.

I agree that there ought to be a penalty for attempting to pervert the course of justice that applies long before the case gets to court; perhaps it should increase in severity the further the case gets. But I think that often, it may be that people who make false accusations may be mentally ill people who need therapy rather than punishment.

[val lavender]

Hi Diane

I agree that many people who make false allegations have got mental problems of one sort or another, I suspect that attention deficit syndrome is one of the most common reasons.

However, unless someone is mentally incompetant, they must realise that what they are doing is wrong. Why should an innocent party suffer merely because someone cannot control their impulses or will not seek proper medical help.

If you look at the approach, taken by courts, to people who are subject to other forms of compulsive behavior, such as gamblers or drug addicts who steal to fund their addictions or alcoholics who are unable to behave responsibly, then why should false accusers be treated any differently. If a person is found guilty of making a false allegation due to a mental abberation then they should be remanded to a suitable facility where their mental problems can be addressed.

I also feel that the CICA scheme should be expanded to cover those who are subjected to false allegations, at the present time the scheme only covers the victims of physical violence, though it does acknowledge the concept of mental suffering as a component of physical assault. The mental damage caused by the trauma of a false allegation can be severe and long lasting.

Additionally, I feel that any person convicted of making a false allegation should have their details placed on a, publicly accessible, register in order that any further allegations they make may be viewed in the light of their previous behavior.

This was origonally suggested, in 1999, by his Honour Judge David Bryant, but his proposals were shouted down by victim support groups who maintained that such as a system might deter genuine victims from coming forward. I do not feel that this is a valid criticism of a system which, if properly implemented, could drastically reduce the wastage of police and courts resources.

I would welcome your comments on the above.

Regards

Val

[diana_holbourn]

I'm in broad agreement with you. I think there should be a national record of false accusers. I think it should then become routine for the police to order a psychiatric assessment of anyone who makes a false accusation while on it, before taking the matter very far. The only concern I have is that people whose attackers were acquitted in error might end up on it. So I think the criteria for putting someone on it would have to depend on the scrutiny of the evidence by someone or persons with more experience than a jury, who would make a decision to put someone on it only if the evidence was hard to dispute. That's if it got to court. If the accusation was dropped before it got there and the person admitted they'd made it up, I think the police ought to put them on it.

Mandatory prison sentences for people who made false accusations that got to court would hopefully be a deterrent to many. It may be now that many people make false accusations because they're seeking attention or for other such reasons, who would drop them before they came to court if they weren't afraid of being prosecuted for wasting police time. If they knew they'd get a hefty prison sentence should the case come to court and it be discovered that the accusation was false, many more might drop their accusations earlier.

Perhaps people who drop false accusations before they get to court should take part in some kind of restorative justice scheme, where the accused gets to tell them about the impact it's had on them, in order that it's brought home to them what a serious thing they've done.

[val lavender]

Hi Diana

the British legal system already has two areas of law that ostensibly cover the problem of false allegations, perjury and attempting to pervert the course of justice.

In theory,if any person who , lawfully sworn as a witness or as an interprepeter in a judicial proceeding wilfully makes a statement material in that proceedings wilfully makes a statement material in that proceedings, which he knows to be false, or does not belive to be true, he shall be guilty of perjury.

In practice this proves to be very difficult to prove, particulaly in respect of the "knowingly stipulation and only applies to cases that go as far as court. Additionally, I can assure you from bitter experiance, it is very difficult to interest the police in such matters.

In terms of attempts to pervert the course of justice, any act which is designed of intended to pervert the course of justice is a crime at common law, which carries a potential life sentance. In real terms it is, again, very difficult to get the police to action such offences unless they are threatened with failure to comply with NCRS 2002.

The UK is the only country in Europe that does not have a specific crime of making a false allegation to the police. I feel that it is high time that we cease relying on archaic common law offences and that specific legistlation is required, together with a fixed schedule of punishments that are reciprocal to the nature of the offence falsely alledged. Such legistlation would have the effect of dissuading a high percentage of people who currently regard the making of such allegations as a viable means of attaining dubious goals.

The current level of sentancing, three months in several recent cases, does not properly reflect the degree of suffering and harm caused by such accusations [ a list of such cases can be found in the newsroom pages of the JGC web site located at www.kotae.co.uk]

Regards

Val