In all honesty, that is one of the most legally ignorant things I’ve ever read on this board. And I’ve read some really bad things.
This BBC article may be of interest:
I wonder if Mr Pritchard will use Parliamentary Immunity to name his accuser?
Could you humor me and explain why, taking into account the varying verdicts by the two OJ juries and standards of evidence? I get that you’re passionate about your beliefs, but nothing I’ve said contradicts the proposed plan. To me, your argument consists of a bunch of “no that’ll never work” and “you don’t know what you’re talking about”. If you have a legal argument, make it.
How will the recent accusations by Virginia Roberts and her being sued by Dershowitzaffect the debate should he prove her a liar?
If he can prove she lied, he can win a lawsuit. I don’t think that really changes the debate at all since that’s been the case, and this isn’t a situation where the accuser’s name is unpublished.
That was not the case in the British press until the other day. The papers made a point of not revealing it.
agreed - and IMHO - this actually should be extended to most/all criminal proceedings.
The real question should be whether the media should be allowed to publicize the name of the person accused of rape. In other words, should the legal system grant the same identity protection to the accused person as it does to the one accusing?
As far as the accuser is concerned, I think it is intuitively obvious that rape is of such a nature that rape victims bear a certain ‘stigma’ that other kinds of victims do not, even if the degree of their loss or suffering was equal or worse than that of the average rape victim. However, it is at the same time very counter-intuitive given the anger and repulsion that the general public tends to feel towards the act of rape and the man accused of rape. Ironically, it is much easier to understand the notion of a stigma being attached to the identity of being a rape victim when the victim is a male. Obviously, no man would like to admit that he was raped, even if he was only a child at the time. But it is harder to understand why a female should be embarrassed about being known as a rape victim. After all, everyone knows that females are much more physically vulnerable and prone to sexual abuse. So it is hard to see how anyone would feel anything but sympathy for a female who is a rape victim (as long as one is not inclined to disbelieve her).
One of the reasons I call it ‘ironic’ is because I tend to suspect that if we were living in a world where it wasn’t uncommon for grown (but small and weak) men to accuse other men of rape or gang-rape, there probably wouldn’t be nearly the same amount of sympathy that would cause the government and the media to keep secret the identity of the accuser, despite the fact that the ‘stigma’ in this case is more palpable and readily understandable (at least in the eyes of males). So it seems as if that the policy of protecting the identity of the accuser has more to do with the instinct to protect women than it has to do with the degree of the stigma that is suffered by any person accusing another of rape. Nevertheless, there is certainly some kind of stigma that could hang on a rape victim regardless of gender, though the nature of it would be different for each one. In the case of females, I can imagine that there is something deeply undignifying and embarrassing about the fact that everyone knows that a man has had his way with her without her permission. And then there is the fact that the notion of violence becomes automatically attached to the notion of sex and these two conjoined concepts spring to people’s minds all the time when they see her or even think about her. That can’t be very pleasant. However, there is at least one case that comes to mind that flies in the face of this sentiment. I’m referring to the Kobe Bryant case back in 2003. That was one case in which the accuser not only didn’t seem embarrassed about anything, but she actually seemed to revel in the situation. I recall that she was reported to have openly bragged to friends about the case during the wild parties she was taking part in as the trial was going on. Okay that is just one person. And I happen to think she was both a gold-digger and a liar. But it still makes me wonder just how real or how strong this stigma is and how often, or in what societies, it really applies.
I don’t mean to nitpick, but I notice that some people have been misusing the word in their attempts to provide examples of the stigma that rape accusers suffer. They cite cases where, for example, a girl is despised and hated all over her campus for accusing some popular and highly admired football heroes of having raped her. These are bad examples of rape victim ‘stigma’. Such cases do not actually qualify as cases of ‘stigma’. These are simply cases of public lynching, and they are borne out of public bias for one side as opposed to another. Even if the girl becomes truly stigmatized in the sense of becoming a permanent social outcast due to her accusations, it is because of the fact that she crossed popular people, not because of the rape itself. Also, in cases where there is ill-feeling towards the accuser by some or many people because they simply don’t believe her and they have reason to think she may have ulterior motives such as financial gain, can that really be said to be a form of “stigma”? I think we have to be careful when we use that word and really think about, and explain, the exact nature of the stigma that we are referring to that results from having been raped. A ‘stigma’, as I understand it, is something of a very long-lasting (perhaps permanent), subtle and sub-conscious nature. It is like a dark cloud that hangs over the person wherever he/she goes even if other people are consciously aware of the person’s innocence or at least possible innocence (in the case of an accused person). Stigmas tend to defy simple logic and ready explanation. One example of such would be the stigma of being an ex-con. Even though people are consciously aware that a person who has served his time has been punished already and that everyone can make mistakes or do bad things, yet there still tends to be a strong stigma upon ex-cons and it is serious enough to make it almost impossible for them to find employment particularly if they are persons of color. Why then does the government allow ex-cons to be forced to reveal their status in job application forms? Why doesn’t it apply the same policy of protecting their identities given the unfair stigma that it causes? This is one of the many examples of inconsistency and unfairness in the legal system at least in the US. But as far as the rape issue is concerned, it is the right thing to do to avoid making public the identities of the victims (even though the media doesn’t always do this).
So what about the people accused of rape themselves? Should they be granted anonymity? On the basis of the fact that people who face such accusations tend to go through intense public lynching that has little or no regard for the truth of the matter, I believe that such people should also be given identity protection until the verdict has been given in court. It’s really that simple. If you cannot trust the public to be fair and levelheaded towards someone, then you probably shouldn’t publicize that person’s identity in the first place especially when the identity of the person doing the accusing is withheld from the public. Whether or not people continue to face stigma even after they have been publically acquitted of rape charges or to what degree, I cannot say for sure. Though I would bet it is a problem that many of them still have to deal with. And I know that it is certainly true in the case of people accused of having sexually abused children. But, as far as two adults are concerned, I really do think that it is unfair to let one person be exposed to public hazing when the identity of the other side is protected regardless of what the truth may be. The right way to go is to apply the anonymity policy to both sides until the trial is over. This may not be practical in certain cases (especially involving public figures), but that doesn’t mean that the policy should not be applied generally.
One argument against this might be that “rape allegations are rarely made unless they are true.” But how certain can we be of this statement given that any possible consequence for accusing someone of the crime is completely non-existent. A statement like that would carry much more weight at a time when anonymity laws were not in existence to protect the identity of the accuser. But when there are no legal or social consequences attached to (false) allegations, there is really nothing to discourage such from happening other than simply lack of interest/desire or fear of violent retaliation. Of course, the vast majority of people would never even dream of making a rape allegation unless it was true. But then the vast majority of people do not rape either (or even contemplate it). So, as in many aspects of this debate, it seems to cut both ways. Also, the statement actually ought to be “rape allegations are rarely made unless the accuser believes it to be true.” Because, in reality, many (if not most) rape cases involve situations where there may be genuine disagreement on both sides as to whether a rape in the true sense actually occurred.
In sum, rape is a very complex, sensitive and emotionally charged issue that should not be tried in the public arena.
What is wrong with prosecuting a case only when you are confident that there is strong evidence against the accused? Do you recommend that states just go about prosecuting people left, right and center, as if it is ping pong game, without even knowing what they are doing? I believe the usual assumption is that the court system (judge and juries) should be trusted to look at a case and decide if the weight of the evidence points to the person being guilty beyond reasonable doubt, the key word being “reasonable”.
The state only needs to stop being so inflexible and let judges decide or change what category of offense an accused should be convicted of when proceedings are done. The current inflexibility in the US system often hurts the victims rather than the accused, as we saw in the case of Zimmerman (compared to the Oscar Pistorius case in South Africa).
I have never given much thought to this (except the idea that people who are found to have lied or forged evidence – either accusers or prosecutors/police – should be forced to pay financial compensation to the accused) but it’s certainly a good idea. At the very least, it will force the state to correct a lot of the flaws that exist in the current system that allows expensive and unscrupulous defense lawyers to play the system by stacking the jury and employing various kinds of technical shenanigans and showmanship to bamboozle jurors into making absurd decisions. The fact that it is so lucrative to be a private defense attorney is just one of the many things that are wrong with the current US “justice” system.
Some people have argued that it will give the state a financial incentive to convict people at all costs, even if it means using illegal means such as torture and coercion, forging of evidence, bribing or threatening of judges and jurors etc… This argument seems so intuitively fallacious or self-defeating in many ways that it is hard to know how to articulate a response to it. Let me just put it this way: do we really want to live in a world where we abstain from doing things in a fair and just manner out of respect for the possibility (or fact) that doing so will invite criminal behavior on the part of the very institution that is supposed to be administering justice? I don’t think this is a very helpful way of thinking. You stand on firmer ground when you argue that it will simply cause the state to ignore crime unless the evidence is so strong (availability of a video tape or a thousand eye witnesses) that they are guaranteed of a victorious prosecution. I have addressed this concern in a previous response.
Besides, it is not even really clear that they would feel such an incentive, at least to the degree that is being imagined. Where is the money going to come from? It’s obviously from tax payers. So it just means that people would pay more taxes to have a fairer system, or that the government simply stops spending money on ridiculous things and adjust its priorities. Spend money on things that really make sense (if there is any hope that politicians can ever do that).
However, I don’t agree that this policy of legal compensation should be applied in a simplistic straightforward manner. Because that would make it unfair in some ways: for one thing, it would benefit the rich rather than anyone else. The richer you are the more expensive the lawyer you can higher. This would rig the system (even more than it already is) to make it far more likely for rich and privileged people to be acquitted of crimes they are accused of. Poor and underprivileged people already stand much less chance of a fair trial and a just acquittal. There is also the basic wisdom that if the evidence against you is so good that you need to find a very expensive lawyer to win your acquittal, then you are probably guilty anyway. Of course, this logic wouldn’t apply to cases where a person is a victim of social and institutional bias and perhaps even of a conspiracy. Also, rich people tend to hire expensive lawyers regardless of the nature of the evidence against them simply because those are the kinds of people they hang around. So there has to be a great deal of nuance that goes into the application of such a compensatory system. I think it should only be done in cases where the person is simply forced by the circumstances to incur legal costs that are well beyond their usual capacity. There should also be a cap on the legal fees that can be considered eligible for refunding.
Of course, one possible problem with this scenario is that a lawyer could artificially create cases for himself by hiring someone to play the role of accuser and another to play the accused and then, after the case has dragged out in court for a certain period of time, finally drop a bomb that will prove the defendant’s innocence…and then get paid by the government indirectly (after having been ‘paid’ by the accused). I find this both serious and hilarious at the same time. But I think the justice system of any serious country can be relied upon to deal adequately with the possibility of such abuses. In any case, a lawyer would be taking tremendous risk by doing that: apart from facing jail time, he would almost certainly lose his license permanently.
What identity protection do you think the legal system is granting in the media?
Even though the law is no longer in place, it certainly set the trend the media currently follows of protecting the identity of the accuser. I think they should set the same trend for the accused, especially since they seem to have a stronger claim to it.
I feel you may not have read your own cite.
Are you referring to this?
Perhaps i have mostly been exposed to those cases in which the media sticks to the policy even after acquittal. But there is really no need to quibble about who and who are or were responsible for the protection of the victim’s ID, or whether or not they still do it. My argument is simply that both sides should be protected from public judgement. Period. It wasn’t meant to be defense of the status quo.
I’m referring to the fact that the very document you cite says that it’s not a legal requirement that the media not publish the names but a professional choice. And that laws that forbade it are routinely found unconstitutional.
So when you say you want the legal system to offer the same protection for the accused, what legal system protection do you mean?
Really? Got a cite to back that up?