The fact that I’ve filed this under “topical thoughts” although the coalition’s statement on this came out weeks ago (now topical again as MPs debate the issue) can be taken as an indication of my trepidation about venturing into this most divisive and explosive aspect of the criminal justice system. I hope very much that spelling out that the controversy is about the anonymity of rape suspects is not necessary: we should all be exercised by this and familiar with the issues.
It’s not possible to think about rape in the criminal justice context without first addressing rape in itself. Much of the argument about how rape should be dealt with is predicated on the idea that rape is a unique kind of crime. Is that so? It’s not uniquely brutal, that’s clear. There are all kinds of appalling tortures that we inflict on one another that would vie along with rape for the right to sit at the ghastly apex of brutality. Is it uniquely invasive? There’s a stronger argument for that, but perhaps only if you also accept that sexual invasion is in a different category than are other kinds. But there is one sense in which the crime of rape is different from all others: it is the only crime that can only be committed by men. Whatever sexually coercive things that women may be able to do to men, they do not constitute rape. Rape requires the penis in the same way that pregnancy requires the uterus. It is its sine qua non. Of course, men can rape other men, so rape is not unique in that its victims must be women, and I’m certainly not going to try and determine if there is any difference between having a penis in one’s vagina against one’s will, or in one’s rectum. But the uniqueness of requiring a penis for its commission does indeed mark rape out.
Does this uniqueness bring anything else in its train? Caroline Flint made the very good point this morning that anonymity is only ever discussed in the context of rape – although I have heard similar arguments made about those accused of child abuse, at least in some circumstances. There are many crimes (I should have thought almost all) where the reputation of the person accused is soiled whether or not they are eventually found guilty. I accept that the more serious the crime, the greater the reputational damage, but justice being done, and being seen to be done, requires openness about the players. This is much more powerful as an argument against the anonymity given to victims than it is as an argument for providing anonymity to suspects. Anonymity for victims is in some ways an intolerable concession to the idea that a violated woman is somehow damaged in the eyes of men, and therefore needs protecting in the sexual marketplace. I am not opposing anonymity for victims, merely pointing out that a special case has to be made for it, and that the default position should be against it.
There’s another aspect about the anonymity for suspects debate. It’s hardly ever put forward when the rape is by a violent stranger in a public place. This is predicated on the notion that there are different kinds of rape, and that some are committed by monstrous fiends that most men can feel secure in the knowledge they will never be, whilst others are somehow the results of misunderstandings in the tragedy of manners when poor hapless men are in some bizarre way tricked by the fickleness of women’s sexuality. And of course, all men can relate to that.
Well, not this one. Penises do not end up in vaginas by accident. There is no point, from the first stirrings of sexual attraction, to the last moment before penetration, when the words “no” and “stop” can be misconstrued. Hugely disappointing maybe, but not misunderstood. Of course it is a travesty if a woman does not say no, but simply regrets the sexual act after the event and then recasts it as non-consensual. That is a nightmare which men rightly fear. But there seems little evidence that it is common. And for the avoidance of doubt, rape can still occur after consensual sex if a man decides on second helpings without their partner’s consent. Consent is not given without an expiry date.
So the anonymity debate, which on one level seems merely an effort at even-handedness, with the rights of victims being mirrored by the rights of suspects, is in fact based on a misapprehension about what is truly unique about rape, and what is not. Rape is not uniquely awful, such that suspects are tainted by the very accusation in a way that cannot apply to any other crime. Rape is unique in that only men can be suspects, and therefore anonymity for men is inextricably linked to the powerplay of sexual politics. Men fear the accusation of rape because it is an accusation that only women can make (other than the much fewer men who are victims: but oddly no-one seems to be getting agitated about anonymity then.)
For anyone falsely accused of a crime they did not commit, the consequences are catastrophic, and the more so the more serious the crime of which they are accused. But this is not a unique attribute of rape. As for the fair’s fair argument that anonymity for victims must be balanced by anonymity for suspects, I’d prefer to see the balance restored by removing anonymity altogether. That’s clearly not possible at the moment because society’s attitudes to rape preclude it. But perhaps a society in which rape is seen as a crime without even the slightest implication that women bring it on themselves, by their dress, or by their sexual fickleness, or by their moral decadence, will be a society in which women no longer feel the need to be anonymous if they are raped any more than they feel the need to be anonymous if they are robbed or defrauded.