The Problem With Anonymity for the Accused

by W.F. Price on December 8, 2010

Despite their involvement in an international scandal and their accusations against a man that could send him to prison, the two women who accused Julian Assange of rape, molestation or whatever it is, have been granted anonymity by the Swedish court and have not been named by most of the Western media outlets around the world. Although it was easy enough to find their identity, given the open flow of information through the internet (a flow that some evidently want to stanch), The Spearhead was one of the few sites that mentioned accusers Anna Ardinn (AKA Ann Bernardin) and Sofia Wilen by name. This resulted in the most traffic we’ve ever had in any one day of the site’s existence.

What this indicates is that most media outlets – even in the United States – toed the line, despite the serious questions raised by the case, and despite the fact that accusers in criminal cases are never granted anonymity in the United States due to fundamental Constitutional law. The practice of not printing women’s names in rape cases is entirely voluntary in the US, but it is still observed by most of the old media.

However, the rules are different in Europe. In many European countries a woman can accuse a man of rape with the guarantee that her name will not be made public, and anyone who does expose her would presumably be open to criminal prosecution and civil lawsuits. The old logic behind not publishing the name of the accuser was that rape was deeply shaming, because women’s chastity used to be considered an integral part of their honor and reputation. Today, because chastity has essentially become meaningless and held to be without any value, the argument is often made that a woman would be open to attacks on her character, which would unfairly benefit the defense.

Recently, there have been calls in Britain to extend anonymity in rape cases to the accused as well as the accuser. This seems fair, given that accusers already have anonymity, but we ought to look at the bigger picture: this is simply a step closer to secret trials. There is a reason that a public trial is a Constitutional guarantee in the US. When aspects of prosecution become secret, there is no possibility for adequate public scrutiny.

In ancient Hebrew law, only a public charge could result in a finding of rape; it was required that the woman cry out and draw attention to the outrage. If she did not immediately and publicly object to being violated, it was assumed that there had been no rape unless the woman was “in the field” and unable to be heard. In fact, the public nature of the accusation is what the woman relied upon to obtain justice and to protect her honor:

Deuteronomy 22:23-27

23 If a damsel that is a virgin be betrothed unto a husband, and a man find her in the city, and lie with her;
24 then ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die; the damsel, because she cried not, being in the city; and the man, because he hath humbled his neighbor’s wife: so thou shalt put away evil from among you.

25 But if a man find a betrothed damsel in the field, and the man force her, and lie with her; then the man only that lay with her shall die:
26 but unto the damsel thou shalt do nothing; there is in the damsel no sin worthy of death: for as when a man riseth against his neighbor, and slayeth him, even so is this matter:
27 for he found her in the field, and the betrothed damsel cried, and there was none to save her.

When prosecution is removed from the public eye the very scope of justice is considerably narrowed. Law, crime and punishment are matters that rightly pertain to all citizens, and therefore all should be participants in the process to some degree. If it were only the courts and their officers who had access to the facts and influence on proceedings, egregious corruption would quickly take hold, because people always act in their own interests. Judges would pardon their associates, police would arrest their enemies or creditors, innocent people would be railroaded all the time simply for convenience’s sake, and many other evils would occur on a daily basis.

Also, importantly, innocent people arrested and charged with a crime would have fewer people to defend them, because the public would be in the dark. Say, for example, that a man you knew, some casual neighborhood acquaintance, simply disappeared one day. Later, you hear he’d been arrested, but you don’t know why. You don’t know what he’s been charged with, you don’t know anything about the alleged crime, and you hear from neither detectives nor his attorney.

Now let’s say that this man had been accused of rape, and he and his attorney are trying to put together a defense. You know the woman who accused him, who also lives nearby, but you know nothing of the accusation. As it turns out, the woman told police that she was raped by this man at a specific time in a specific place: a Sunday evening at 10PM in his car in a park some twenty minutes’ drive away from the neighborhood. On that Sunday evening, at 10 PM, you were walking to a local convenience store and saw the woman walk out of her front door, get in her car and drive away.

You thought nothing of it, you never mentioned it to anyone, and you’d pretty much forgotten about it. Unfortunately for the accused man, nobody on his defense has a clue that you were there, and the detectives have no idea either. But if you heard that this man you knew had been accused of raping that woman at exactly that time in a different place, in his own car, you’d be able to call the police and tell them what you saw and testify in court. It might save him a decade in prison for a crime he didn’t commit. But anonymity would prevent that. Anonymity in criminal prosecutions severely limits public participation in resolving criminal cases, and as any detective will tell you the public is a huge source of information.

On the other hand, if you knew something that could convict a man, and knew nothing of his case, a guilty man could well go free.

What secrecy in criminal proceedings does is concentrate power and “truth” into the hands of the few. It elevates officers of the court to omnipotent status and assures that they answer to no one, where in a free society their correct position is as arbiter of the public will. At times, I suspect that this is why feminism and feminist family law have been received with such warmth by courts — the institutions have created a mutually-empowering relationship by methodically removing accountability from each other. Courts have granted women license to freely accuse for their own gain, and feminists have granted courts license to seize assets and coerce men free from the confines of the Constitution. It is a power that has proven too tempting to resist.

In the meanwhile, we men may have few tools at our disposal to match the weaponry of the state, but information and knowledge are absolutely crucial to any effort we make restore a more free and just society. Therefore, we should never encourage secrecy in the courts, because, like the maiden who is ravished in the city, sometimes our only defense is in crying out to the public.

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