Use of Anonymity in Sexual Offences Lawsuits: How to strike a balance between the rights of defendants and victims
This Blog is written by Nayantara Rao from Amity University, Mumbai. Edited by Karan Dutt.
Under sexual offences there are a range of various crimes which can be considered, including non-consensual crimes such as sexual assault or rape, crimes against children including grooming or child sexual abuse, and exploitative crimes towards others for a sexual purpose, whether it be in person or on online. Domestic abuse, sexual offences, harassment, rape, stalking, so-called ‘honour-based’ violence which includes forced marriage, child abuse, female genital mutilation, prostitution, pornography, human trafficking focusing on sexual exploitation, and obscenity are all included within sexual offences.
• Sexual offences by the Indian Penal Code are classified as:
• Natural Sexual Offences 1. Rape 2. Adultery 3. Incest
• Unnatural Sexual Offences 1. Sodomy 2. Lesbianism 3. Bestiality 4. Buccal Coitus
• Sexual deviations/perversions 1. Fetishism 2. Transvestism 3. Sadism 4. Paedophilia etc.
• Sex linked offences 1. Indecent Assault 2. Offences under Immoral Traffic Act
ANONYMITY OF THE VICTIM IN SEXUAL OFFENCES LAWSUITS
Throughout the world there is a fundamental principle of open justice where court proceedings are reported on in an open, just and transparent way by the media. This in a usual way would mean identifying the defendant and, often, any victim(s) of a crime and reporting on every detail of a case as well. A major exception to the previously stated rule are sexual offences. Automatically guaranteed anonymity for life is provided to all victims of sexual offences, including children, from the moment they make an allegation that they are the victim of a sexual offence. Even when someone else other than the victim accuses the defendant of the offence guaranteed anonymity is provided to the victim.
Section 228-A of the Indian Penal Code which is in sync with the UK’s Sexual Offences (Amendment) Act, 1976 essentially prohibits anyone from publishing the name of a sexual assault victim—unless it is done as part of the criminal investigation, or is authorized in writing by the victim or by their family should the victim be deceased, a minor, or of “unsound mind”—under penalty of up to two years in prison. Journalists are prohibited from revealing any other potentially identifying information about victims of sexual assault under the same section of the IPC.
There is an exception to this rule in the US. The Supreme Court, strikes the state laws consistently which prohibits the media from revealing the name of the victim of sexual abuse. However, media organisations there have scrupulously observed a self-imposed code of not publishing the name of the rape victim.
A variety of laws aim to protect children by making various acts with children a sex crime. The “corruption of minors” for example by introducing material or behaviors that are intended to groom a minor for future sexual conduct. The materials or behavior can involve sexual content but does not necessarily have to. The children who are faced with sexual offences are provided anonymity thoughout their lives.
ANONYMITY OF THE DEFENDANT IN SEXUAL OFFENCES LAWSUITS
The experiences of those accused but not charged, or charged but subsequently acquitted of sexual offences in the UK has exposed once more the intensity of media scrutiny for alleged sexual offences, the damage it causes to reputation to private lives and to the right to be presumed innocent is not given. Complainants in sexual offence cases are assured of lifetime anonymity; no protection is available to defendants. Debates on reform have focused on the utility and morality of extending anonymity to defendants. Less attention has been given to the proposed scope of reform, how the Common Law might offer protection already and why limited reform is necessary in consideration of the provisions on sexual misconduct in other areas of law. They want an amendment to be made to the Sexual Offences (Amendment) Act 1992 to extend a degree of statutory anonymity to defendants which alleviates the intense stigma associated with accusations of sexual offence, will protect private lives at the time they would be most newsworthy, will relieve individuals of lingering public disapprobation in the absence of any charge and close the gap between this and other areas of law. Once a charge is brought, greater use should be made of the Common Law in pursuance of the Convention Articles. Discretion on the part of judges with regard both to the facts of each case and the flexible powers at their disposal will help to ensure competing interests are balanced.
Northern Ireland recommended the present system in the North remain in place, where defendants are named publicly after being formally charged. That report said there was “clear evidence” that publishing a defendant’s name “serves to bring forward other complainants”. The Republic is the only common law country that allows anonymity for a defendant in rape cases, making it an outlier in similar countries such as the UK, USA, Australia, New Zealand and India.
Repeatedly in the various parliaments throughout the world the question of anonymity for defendants accused of rape and other sexual offences is raised over several decades, and has also received frequent attention in newspapers and, to a lesser extent, in academic and professional literature. The debate has on weak empirical foundations certain arrays of factual claims and arguments.
One of the main arguments in providing anonymity to the defendant is that there is a probability that the allegation is false. And that having a false allegation of a sexual offense carries stigma and when anonymity is provided to the victim the chances of false accusation increases to a huge extent. It damages their reputation if it is a false claim. However, there are many other offences such as a homicide which brings in stigma from the society and the courts throughout the world do not grant the defendants anonymity.
Sexual offences are a blot on the face of any civilized society. It is looked done at and the perpetrators of these crimes will not go unpunished. They will have to face both the punishment given by the court and also the stigma given by the society. But even when the allegation made were false, the defendants would have to face the stigma of the society. It is said that an accused is presumed to be innocent till he is found guilty. Thus, it would be sensible to provide anonymity to the defendant until he is proven to be guilty. The anonymity of both the victim and the defendant must be lifted if the anonymity provides a substantial and unreasonable restriction on the trail’s reporting and if removing anonymity is in public interest. In a few cases anonymity is provided to the defendant to maintain the anonymity of the victim. There must be a good balance between the rights of the supposed Ed victim and defendant before the trail as all the aspects of the offence is not yet known.