Should the privacy of those accused of sexual crimes be protected?

[Sunny_Daze]

A recent thread, which discusses men falsely accused of rape, prompted me to think about how we treat those (male and female) accused of sexual crimes.

One frequent complaint is that false accusation ruins lives. Would it be possible to keep the names of the accused private, as we often restrict the names of the accusers, for a certain period of time, in order to limit the risk of damage from false accusation?

For discussion, I would suggest that the names of the accused and the accusers be kept private until the accused are either charged OR if we want to set a higher bar, until they have passed the preliminary hearing or the arraignment.

To start the debate, I would be in favor of some type of anonymous system, until the successful completion of the preliminary hearing. (Would that be “sealed charges”?) Once the prosecutor has demonstrated that they have sufficient evidence to move forward with a trial, then I think the name of the accused could be revealed.

What do you think? Would this system help prevent some of the damage caused by false accusations?

Full disclosure: I worked as a rape crisis counselor for several years. I talked to far more women who never disclosed, than I ever ran across false accusers BUT I recognize this may be a problem in our system. To the extent that it is, can we address it fairly?

[Kimera757]

Even if the courts protect the identity of the accused, what prevents the accuser from going to a reporter, who can then (with apparently little difficulty) identify the accused? Once the name is out there, other news sources can then discuss the accused with (apparently) no difficulty.

On a related note, there is actually little protecting the rights of the accuser except human decency, at least in Canada. In the Jian Ghomeshi rape trial, two of the three accusers eventually revealed their names, but one of them did not reveal their identity right away. One of them complained that trials are “public”. No cameras were allowed in the courtroom, but anybody who attended the trial would see the accusers when they testified, and would learn their names from listening to testimony. None of the names were in fact leaked; I assume solely because nobody wanted to leak the names.

[marshmallow]

Why only rape? Why not murder or drugs or embezzlement too?

[Sunny_Daze]

I chose the topic of sexual crimes because I see this type of post in various threads on the Board on a regular basis. I never see similar [del]diatribes[/del] maunderings about poor, mis-accused murderers.

@Belowjob2.0

You aren’t going to get much traction on this board for this issue. The official position here is that false accusations almost never happen, and all accusations should be taken as true.

/S
If some men are hurt by this, well, they were asking for it, weren’t they? If they didn’t want to have their lives destroyed, their academic careers ended and reputation ruined, what were they doing having sex outside of a committed relationship anyway? And even if they were in a committed relationship, what did they do to make the woman angry? After all, that’s what’s really important. A woman is pissed off. Something must be done about it!

For the purposes of this thread, therefore, I’d like to keep it to the topic of sexual crime. If the thread becomes a broader topic, so be it.

[Sunny_Daze]

@Kimera757

Even if the courts protect the identity of the accused, what prevents the accuser from going to a reporter, who can then (with apparently little difficulty) identify the accused? Once the name is out there, other news sources can then discuss the accused with (apparently) no difficulty.

Nothing prevents it now (see the point you make in the following paragraph). If there were some sort of law attached to this, then it would depend on what penalties were attached to it.

On a related note, there is actually little protecting the rights of the accuser except human decency, at least in Canada. In the Jian Ghomeshi rape trial, two of the three accusers eventually revealed their names, but one of them did not reveal their identity right away. One of them complained that trials are “public”. No cameras were allowed in the courtroom, but anybody who attended the trial would see the accusers when they testified, and would learn their names from listening to testimony. None of the names were in fact leaked; I assume solely because nobody wanted to leak the names.

So one way this could work is if society decided that it was in society’s interests - it was decent - to withhold this information until a certain tipping point had passed.

In a larger sense though, I wondered if this was a good idea or not. Before we even get to logistics, is this good for society to withhold this information until we get to the point where the court decides there’s enough evidence for trial?

[Velocity]

@marshmallow

Why only rape? Why not murder or drugs or embezzlement too?

That should be, too.

[coffeecat]

Maybe people could remember what “alleged” means and that the accused is innocent until proven guilty.
I dream.

Sent from my SM-G900T using Tapatalk

[Sunny_Daze]

Well, I suppose my entire question is predicated upon the supposition that false accusations of sexual assault (of whatever type) destroy lives in a unique way, and that the accused deserve a unique level of protection until the point of moving to trial is reached.

Is this true or not true?

[Quartz]

@Sunny_Daze

A recent thread, which discusses men falsely accused of rape, prompted me to think about how we treat those (male and female) accused of sexual crimes.

One frequent complaint is that false accusation ruins lives. Would it be possible to keep the names of the accused private, as we often restrict the names of the accusers, for a certain period of time, in order to limit the risk of damage from false accusation?

I think either all the names - both accuser(s) and accused - should be public or none of them; I’d let the court decide, but it should be all or nothing, and nothing before actual arrest. For almost any crime, not just sex offences. However, I think a big problem is not just the accusation but the delay in prosecution resulting from the accusation: once arrested there should be a speedy trial. The longer the delay, the more the damage to the accused’s reputation and the longer it takes and more difficult it is to recover. That is, someone should only be arrested or taken into custody once there is sufficient evidence for a prosecution. A trial should start within a month and be completed within a further month. None of this keeping people hanging for a year or more, like Cliff Richard and Paul Gambaccini, or being bailed to reappear in one or three or six months. As the saying goes, justice delayed is justice denied; that applies to both sides. Someone accused of a crime - any crime - faces severe repercussions both socially and at work, often losing their job. In the US, I would suggest that being accused of a crime be accorded a protected status, so as to ensure the presumption of innocence.

In short: reform of exposure, speedy trial, and formalisation of presumption of innocence.

[Zero-syde]

“Accused” - well, since everyone, and that includes men too, are innocent until proven otherwise - yes, innocent people should have their identities protected. This should be a no brainer, but we like to make double standards.

If someone goes around spreading accusations that are eventually deemed unfounded, the consequence to both the person who spread it and those who facilitated that spread (namely the news media) ought to be downright draconian.

There are serious problems with how the legal system treats victims of - especially sexual - crimes, but that doesn’t make it okay to ruin the lives of people who aren’t found guilty.

[Bricker]

@Sunny_Daze

I never see similar [del]diatribes[/del] maunderings about poor, mis-accused murderers.

The mis-accused murderer is indeed to be pitied, but unless a Oujia board’s accusation is admitted as evidence, it’s unlikely to be the victim accusing him.

And sexual assault is unique in another way: if the victim of a mugging accuses someone of accosting him in an alley and demanding his wallet with the threat that a beating will ensure for non-compliance, it’s far-fetched in the extreme for the accused to claim, “No, no – what happened in that alley is he approached me and offered me the wallet, just for fun.”

It’s true that whether the act of handing over one’s wallet is theft rests precisely on that claim: the man who does so willingly, with no threat, is the victim of no crime, and the man who accepts that wallet is the instigator of no crime. Consent transforms a crime into a gift.

But the mugger is out of luck because it’s unrealistic in the extreme to imagine someone gifting a stranger with a wallet. So the jury hearing that claim is entitled to treat it with great skepticism.

But when the issue is a sexual act, the lines are not nearly so clear. It’s quite possible to claim that the sex act in question was consensual. The jury cannot simply dismiss the idea that two strangers met and willingly engaged in sex. It happens.

In days long past, the reason that the chaste reputation of a rape victim was relevant was for the same reason: a jury could assume that a woman of chaste character would never willingly dally, sexually, with a man outside the bounds of matrimony. So if the woman could claim a chaste reputation, the jury could regard proof of the sex act as strong evidence of a lack of consent. But if she were a loose woman, who willingly had sex with men outside of marriage, then the mere fact that sex occurred here proved nothing.

Of course, that presumption was itself problematic, because in practice it became: a woman who is not chaste can’t really be raped. Today, rape shield laws make that kind of inquiry into a victim’s past legally irrelevant and impermissible.

But the problem remains: to analogize rape or sexual assault to other kinds of crimes against the person generally fails, because sexual assault is about the only kind of act that both rests entirely on the lack of consent and involves an act which is perfectly plausibly done consensually.

All that, of course, is general commentary. The facts of specific cases makes claims of consent easier or harder to prove. The rape victim admitted to the hospital with broken bones and lacerated genitals will most likely not face a strong defense of consent at trial.

[MandaJo]

You run into practical issues pretty quickly. The same potential consent issue cuts both ways, and lots and lots of rapes aren’t reported because everyone involved understands that prosecution is simply impossible–going through a rape kit and investigation is pretty pointless in those circumstances. In an earlier thread, which I cannot find, we had a couple posters argue that even if you’d been personally raped by a man, you had a positive moral duty to conceal that fact from anyone except your absolute closest confidants–you had to make sure your roommate didn’t have the slightest suspicion before she went on a date with him, because you slandering someone without positive proof was a worse moral crime than setting someone else up to suffer the same assault. I simply can’t see letting someone walk into a highly dangerous situation as the lesser evil.

[MandaJo]

NM, posted wrong link. Still looking.

[TriPolar]

The privacy of the accused and the accuser should be protected the same. I don’t know whether more protection or less would be better.

[wolfpup]

It may be worth noting that although privacy concerns and their impact on potential rehabilitation is an issue worthy of debate, things sometimes do get out of hand.

[Sunny_Daze]

@Bricker

The mis-accused murderer is indeed to be pitied, but unless a Oujia board’s accusation is admitted as evidence, it’s unlikely to be the victim accusing him.

And sexual assault is unique in another way: if the victim of a mugging accuses someone of accosting him in an alley and demanding his wallet with the threat that a beating will ensure for non-compliance, it’s far-fetched in the extreme for the accused to claim, “No, no – what happened in that alley is he approached me and offered me the wallet, just for fun.”

It’s true that whether the act of handing over one’s wallet is theft rests precisely on that claim: the man who does so willingly, with no threat, is the victim of no crime, and the man who accepts that wallet is the instigator of no crime. Consent transforms a crime into a gift.

But the mugger is out of luck because it’s unrealistic in the extreme to imagine someone gifting a stranger with a wallet. So the jury hearing that claim is entitled to treat it with great skepticism.

But when the issue is a sexual act, the lines are not nearly so clear. It’s quite possible to claim that the sex act in question was consensual. The jury cannot simply dismiss the idea that two strangers met and willingly engaged in sex. It happens.

In days long past, the reason that the chaste reputation of a rape victim was relevant was for the same reason: a jury could assume that a woman of chaste character would never willingly dally, sexually, with a man outside the bounds of matrimony. So if the woman could claim a chaste reputation, the jury could regard proof of the sex act as strong evidence of a lack of consent. But if she were a loose woman, who willingly had sex with men outside of marriage, then the mere fact that sex occurred here proved nothing.

Of course, that presumption was itself problematic, because in practice it became: a woman who is not chaste can’t really be raped. Today, rape shield laws make that kind of inquiry into a victim’s past legally irrelevant and impermissible.

But the problem remains: to analogize rape or sexual assault to other kinds of crimes against the person generally fails, because sexual assault is about the only kind of act that both rests entirely on the lack of consent and involves an act which is perfectly plausibly done consensually.

All that, of course, is general commentary. The facts of specific cases makes claims of consent easier or harder to prove. The rape victim admitted to the hospital with broken bones and lacerated genitals will most likely not face a strong defense of consent at trial.

If I read you correctly, sexual crimes would appear to be in a special category. I would argue that this is even true if we look at sexual crimes outside of rape, which was my original intention. There is a societal stigma attached to these crimes - imagine the child care worker accused of molestation.

If it is true that sexual assault is very rarely analogous to other types of crime, what type of protection should be offered the accused (and at what stages)?

[Sunny_Daze]

@MandaJo

You run into practical issues pretty quickly. The same potential consent issue cuts both ways, and lots and lots of rapes aren’t reported because everyone involved understands that prosecution is simply impossible–going through a rape kit and investigation is pretty pointless in those circumstances. In an earlier thread, which I cannot find, we had a couple posters argue that even if you’d been personally raped by a man, you had a positive moral duty to conceal that fact from anyone except your absolute closest confidants–you had to make sure your roommate didn’t have the slightest suspicion before she went on a date with him, because you slandering someone without positive proof was a worse moral crime than setting someone else up to suffer the same assault. I simply can’t see letting someone walk into a highly dangerous situation as the lesser evil.

I know the thread you speak of. I will see if I can find it.

I think I’m drawing a rather arbitrary line of withholding information from the public until such time as the preliminary hearing is conducted and it is determined there is sufficient evidence, cause, etc, to bring the accused to trial. At that point, I think it is warranted to release the names. Prior to there being a determination that there will be a trial, perhaps it’s premature. It would be interesting to know what percentage of charges are ever brought to trial (or any type, not just rape). I am assuming that there a drop off between being charged, and arraignment, for example, where a case might be dismissed or dropped for various reasons.

[Velocity]

@wolfpup

It may be worth noting that although privacy concerns and their impact on potential rehabilitation is an issue worthy of debate, things sometimes do get out of hand.

Yeah, this is about as far from rehabilitation as it gets…

[Ken001]

It is an excellent question.

It is worth understanding that in a substantial percentage of sexual offences, the parties are known to each other. Stranger danger happens but the biggest risk comes from someone your family knows.

In New Zealand the judge at the very start decides if the name of the accused is to be suppressed until after trial. The reason quite commonly is that if the defendant is named then the victim becomes known by default. For example, sexual assault against a daughter.

The victim’s name is suppressed as of right - by law. The victim cannot be publicly identified.

These suppression orders are accepted and understood by the press.

I don’t know about Australia and Britain but think they have variations on the same theme.

[PatrickLondon]

Hot debate in the UK around just this issue. There is anonymity for the complainant, but not for the accused.

There is debate about the way the names of people arrested or held for questioning before charge seem amazingly to find their way into the press, but there is an argument that once it is known that a particular person is under investigation, and/or formally charged, there may be other victims who were previously too abashed to come forward.

On the other hand, there have been a number of high profile cases here that have called this into question. In one case, no charges were made after a high profile raid in which the BBC were tipped off in advance and were waiting with a TV press crew, in another someone claimed various high profile people were involved in a murderous paedophile conspiracy, and their names were bandied about for months before it was decided the whole thing was a concoction; and there was the case of a man acquitted of rape (on retrial) where his supporters argued that the complainant shouldn’t have had the benefit of anonymity, as her credibility was in their view in question - and quite a few broke the law to name her on social media.