The role of human rights in determining whether complainants of a sexual offence and/or defendants charged with an offence under the Sexual Offences Act 2003 should receive anonymity

Abstract

A 2010 proposal to extend anonymity in rape cases to rape defendants underlined the continuation of a long running, highly politicised debate, centred on whether one or both parties in a rape case should receive anonymity. This research addresses the question of rape case anonymity from a human rights perspective with a rephrasing of the popular arguments enabling a better understanding of where the correct balance should lie.

The specific rights addressed are those arising in the context of rape proceedings. Firstly, Article 3, the right not to be subjected to torture, inhuman or degrading treatment. Analysis concludes that withholding anonymity would not violate the Article 3 right of either party in a rape case. Secondly, Article 8, the right to privacy and a family life. Discussions demonstrate that rape complainants require blanket anonymity to uphold their right to privacy and as an exception to open justice. Rape defendants do not require anonymity to protect their Article 8 rights. Thirdly, Article 10, the right to freedom of expression and how it balances against a rape defendant’s Article 6 right to a fair trial. Discussions show that Article 10 will outweigh Article 6 in these circumstances, especially since the media’s right to freedom of expression facilitates open justice, and thus a fair trial. Fourthly, the complementary Article 14, the right not to be discriminated against. Analysis concludes that rape complainants, but not rape defendants as a group, face discrimination and thus require blanket anonymity to uphold their Article 14 rights.

In conclusion, rape complainants should continue to have anonymity whilst rape defendants should not be afforded it. A rape complainant’s Article 8 and 14 human rights are highly likely to be violated without anonymity. Lack of anonymity would not breach any corresponding human rights of a rape defendant.