There is furious debate in the comments to this article in the Guardian by Naomi Wolf, in which she argues that “Julian Assange’s sex-crime accusers deserve to be named”.
Do they? He has been after all.
I just don’t know. Neither about Assange’s case, or the general case.
On a point of fact, Wolf is quite wrong in claiming that the rule of law by which the plaintiff in a rape case is given anonymity is a “Victorian relic”. Commenter “snoozeofreason” said that anonymity was introduced, for what were seen as feminist reasons, in the Sexual Offences (Amendment) Act 1976. This link to RapeCrisis, an activist group, confirms that fact. It also argues in favour of anonymity for the accuser but not the accused. I reject that. The only thing of which I am sure is that the accused and the accuser should be treated the same: anonymity for both, or for neither.
Naomi Wolf is an icon of feminism. In making this argument she has broken ranks with other feminists. Schadenfreude at the the sight of them rending each other is never far away, but schadenfreude does not actually give me an answer as to whether anonymity in rape cases is a good or a bad thing. I have bitterly criticised feminists and anti-rape activists in the past for their wilful denial of the possibility of false accusations of rape. I sneer at Naomi Wolf’s late discovery of this type of possible injustice. Yet she makes a strong argument:
“Though children’s identities should, of course, be shielded, women are not children. If one makes a serious criminal accusation, one must be treated as a moral adult.”
Against that is a more nebulous pressure, but one with deep roots in the human psyche: rape is different from other forms of assault. The trauma of a rape victim, male or female, does not arise only from the physical injuries received. Harm is done to them by having the fact that they have suffered such a violation made public. Some victims would feel unable to come forward if it were to be made public.
Yet other rape victims argue that this reluctance merely reinforces the barbaric idea that there is something shameful in being raped. We use the word shame to mean too many things.
Anonymity for tort.
Non-anonymity for crime.
Bringing criminal actions involves the concept that a portion of the crime was against the collective, and so the collective is therefore directly involved and should know who the parties involved are. The public has a right to know if a person has been charged with a crime, especially if they are allowed bail.
“rape is different from other forms of assault.”
ask a victim of a murder.
Really? In what way? Qualitatively? It’s generally far less severe in consequences than getting your head kicked in, being stabbed or shot, let alone being murdered.
Do a comparison; be honest. You have a choice and, since this is a thought experiment, be assured that the choice on offer is certain; whatever you choose will be done.
Now, there is a man, and he has offered you the choice of having sex with him, or he will slash your face with a knife, leading to permanent disfigurement. Which do you choose? You must choose one; he will not do both in our experiment. Which is it?
***
If we make comparisons like this between crimes we can start to rank them in severity for each individual. I would wager that most women, and men[1], threatened with the knife, would submit to rape. Almost everyone would choose the rape above a severe, crippling beating, or being stabbed, or shot. In fact, we can make a general case here; if being threatened with X will coerce you into Y, then in your personal value system X is more severe than Y. It is a worse crime.
What has happened over the past few decades is that the feminist movement[2], being erotophobic, have deliberately- in the public morality- taken rape out of its normal place in the scale of crime, and placed it on a pedestal, such that to appear moral in public one must declare it “the worst crime possible”. A special thing, more horrible than anything else. This then justifies gross distortions of the criminal justice system at the behest of said feminists.
So, let us put it back in its place, (in the process gaining certain moral denunciation as we deny the cultural hegemony). Rape is an assault, somewhere above mugging and below GBH on the scale. It requires no special treatment in law, and there are numerous worse things that can be done to people, and are, and fill the nation’s casualty units and cemetaries. The apparent moral knots we twist ourselves into on the issue are due, entirely, to the requirement to believe, at least in public, something which is not true– an increasingly common experience in our neo-puritan age.
[1] The male version here is homosexual, and he didn’t bring a tub of vaseline.
[2] Specifically the neo-puritan radicals, with the trinity of Dworkin, Mackinnon and Steinem at the epicentre and the choir of the “survivor movement” for support. Mackinnon, as the legal scholar, took the deranged rape fantasies of Dworkin and created from them the modern western legal framework which shapes the modern debate.
Julian Assange’s accusers? Oh, you mean Anna Ardin and Sofia Wilen? No, I don’t think they should be named.
Consensual sex when the condom breaks is rape? Gimme a break. Keep clear of Sweden, guys. Talk about closing the stable door after the horse has bolted.
Sweden: Too small for a country, too big for a lunatic asylum.
Yes rape is different from ordinary assult Ian B.
“Why?” – Z (you know why).
As for Naomi Wolf and her sudden coversion to the Common Law principle that accusers should be public (not secret informers).
I would like to believe it is sincere – but I suspect it is because Mr Assange has become an icon to the left. And rightly so – he has openly said that he publishes confidential information NOT really because he wants more transparentcy, but mainly because he wants a Progressive World Community and he thinks that publishing certain information is a good way to undermine powers that might (at least if there was a different President – but still in a structural way even with the present one) stand in the way of this aim.
Specifically in the most recent case, the gaol is NOT to make the opinions of diplomats more wildly known to the public, the goal (as Mr Assenge has said himself) is to undermine the system by which large numbers of people within the American government get to read these opinions.
If there is a big danger of opinions being published to the world – then they will never go on the electronic sharing system in the first place and America is weakened (which is the objective of the exercise).
All that being said……..
Mr Assange can do what he likes, he has committed no crime as far as I can see.
And certainly the “rape” charges appear to be absurd.
Paradoxically both accusers are themselves leftists – people who reject (at least thought they rejected) the notion that sex is linked to love.
Sex (so they claimed) is just a pleasurable act – with no emotional (let alone spritual) connection.
And they met a man who felt exactly the same way – he had sex with them, and then did not want to know them.
No flowers, no relationship – nothing of the sort that they (as radical femminists) said they DESPISED.
Yet, oddly enough, both women got very upset (very upset indeed), and wanted to “hit back” at a man who had “used them for sex” but clearly did not LOVE them.
Back to the core of the original article, the issue of anonymity creates a lot of problems when, for example, journalists cover court trials. From my own experience, this can lead to reports of cases being covered in a tortuous fashion. From the moment that a rape allegation is made, the ID of the accuser is kept secret and journalists have to be very careful that in their reporting on the matter, they do not inadvertently give away the accuser’s ID.
One current exception is where a rape victim is also murdered. In that case, the victim is clearly ID’d by name.
I suppose one final point is where sexual offences involve minors. I see a case for observing some sort of restrictions, but what the exact age limit should be is not something I have firm views on either way.
Ian B gives an interesting argument that rape isn’t different from other crimes, and I think he’s right to an extent — except that rape is different from other crimes, because everyone else considers it different.
As the OP says above, it is bien pensent to consider it a special kind of shameful to perpetrate or be the victim of rape.
Back to the issue of anonymity: this is a simple matter of economic costs. To grant anonymity to the accuser is to reduce the cost of making rape accusations, and to grant anonymity to the defendant is to reduce the cost of being accused of rape.
This might be an appropriate use for judicial discretion. Anonymity is assumed in criminal cases, but the judge can — at the start, end, or any time in the trial — authorise the disclosure of the identities of the accused and/or accuser.
1) Anonymity for accusers is a travesty of justice, a politically-correct injustice, rammed through various legislatures by single-issue feminists and acquiesced-to by pin-head lawmakers desperate for votes.
If the power of the state is to deployed against a citizen with a view to depriving that citizen of life, liberty or property, that power needs to be deployed in the full and unshadowed view of the public. Justice must be not only be done, but be seen to be done. Secret accusers and secret evidence are the very antithesis of justice.
2) Quite apart from that – in the case of the apparently-rather-unpleasant Mr Assange, let’s not let our dislike of some of his reported behaviours colour our judgement;
He’s not being accused of trifling with the feelings of these women, or not calling them the next day, or not sending flowers, or misleading them about his prior relationships.
He’s being accused of performing specific physical acts with these women by force and without their consent.
Leave aside whether or not these acts should or should not constitute crimes – the fact is that it appears that these may be classified as crimes in the place where he performed them. The rest is just media fluff.
It is, of course, schadenfreude of the richest and rarest vintage to watch Mr Assange’s partisans crying the blues as the more-or-less sordid details of his fleeting and graceless liasons are spread out for the world to see. The biter, bit.
3) The comments attached to Ms Wolf’s article are most illuminating. Old-school feminism really is turning into what amounts to a religious cult.
llater,
llamas
Personally, I, to a large extent, tend to sympathize with Ian’s sentiments on the subject of sex in general: it’s just sex, people, get over it. Unsurprisingly, I also disagree with Paul’s views on the subject: many women who are very far from being feminists have sex without love and enjoy it, not expecting flowers or to be called the next day. I am not endorsing this attitude, as it really is none of my business anyway – to each their own. All that said though,
True sconzey, but the interesting question is, why does everybody consider it different? Within this metacontext here which is, ultimately, all about human relationships based on mutual consent, for most people sex may be the ultimate act of consent on a part of one person towards another (or several others, as the case may be). So Ian may be right, and rape may be considered as a lesser bodily injury than severe disfigurement, not to mention death. But at the same time it may be the worst possible injury to one’s psyche, since, and to reiterate, sex is all about consent.
On rape, what Ian B and llamas said.
An issue is whether rape should be a civil or criminal offence.
If we accept that the State should prosecute rapists, then I agree with llamas; it is dangerous to let the State keep the names of the accused and accusers secret. Of course, as Johnathan mentioned, having them named causes problems in the conduct of a fair trial. Unfortunately rape may have to be kept a criminal offence since there is a cost to society to having rape (and other violent crimes) go unpunished.
In an anarcho capitalist system the victim could sue the rapist. For arguments sake lets say that they both have comprehensive insurance that covers legal costs and compensation to the victim (in the case of the rapists insurance company). The insurance company of the victim will then sue that of the offender. It is in the interest of both companies that evidence standards and the quality of procedures are as high as in the criminal justic system. It is also in their interest to act in the interest of both parties. This will likely include anonymity since being named is very costly for both offender and victim. If it didn’t the parties could go to other insurance companies. It is also in the interest of the insurance company of the offender to dish out some punishment to their own client, if he is proven guilty. It would have been specified in the contract. If the client did not agree to this clause then they would have to pay a higher premium. This also satisfies the benefit to society of crimes such as rape being effectively deterred. Anyway, the point of this paragraph is to make a case for anonymity being granted to both parties.
Ian B’s post reminded me of a joke I read recently. Three missionaries go to the Amazon to spread the gospel. The tribe they visit take offence and decide to punish them; each in turn. They are given the choice of death or ‘kabunga’. The first missionary reasons that whatever kabunga is, it can hardly be worse than death. He chooses kabunga and immediately the warriors of the tribe commence sodomising him. Horrified, the second missionary has a careful think. Sodomy was a terrible crime in the eyes of the lord, but so is choosing death. Reluctantly he agrees to kabunga, and the warriors begin their task, while he closes his eyes and thinks of having it on with Dannii, Mary mother of God, and a dildo. Now it is the third missionary’s time to choose. He spots the by now empty vaseline jar lying on the earth. He is the most conservative of the three and cannot contemplate being sodomized. He puts on a serious face and announces that he will choose death. The tribal elder says ‘very well, it is death, but first…. kabunga!’.
Alisa, a couple of points to clarify my position-
I wasn’t restricting my definition of harm to “bodily”/physical harm. My thought experiment is a way of generally rating crimes in terms of the brain’s innate value system; its mechanism for judging “A is better than B” and “C is worse than D”. If we imagine doing that for numerous crimes, we can’t get an “absolute” scale from it (since there is no measurable unit of such value) but we can get a relative scale and that encompasses all aspects of harm in the crime; injury, distress, economic loss etc. It would be a diffficult experiment to do in practise- since none of us really know what decision we will make until genuinely faced with it (as in economic decisions, another aspect of the brain’s value system), and knowing they are in an experiment the subject might start answering with “what they think they ought to think” rather than what they actually think; nonetheless as a thought experiment it works well.
I am thus suggesting- and I think our experiment would bear it out, if done- that the consequence of several highly successful decades of campaigning by the Rads- have resulted in an increasing separation between that internal, individual value system in individuals, and the “publicly declared” value system, resulting in this crime being moved far from its “natural” relative place in the scale of harm.
Part of this campaigning- a highly successful part- has been the development and deployment of a trauma narrative. Being the victim of crime is a traumatic experience, but the degree of trauma will vary greatly from individual to individual. What the Rads have been able to do, by cooperating with the Therapy Movement, is to emplace in the public consciousness the idea that the most extreme reactions are the normal reaction. In this Wolf is correct, although not surprisingly she has her history and the “why” wrong. It is simply the (Victorian) idea that rape is “a fate worse than death” which is of course total rubbish.
So yes, “most people” now do indeed hold these ideas about rape- it is virtually obligatory to in polite company- but they don’t really know why. I remember giving as an example in another discussion here about this; it is the equivalent of saying that every man who goes to war will suffer severe shell shock, when the reality is that most do not. That doesn’t mean that nobody does of course, but it creates a very false picture to present the extreme reaction as the normal reaction.
The other side to this is one of expectations and deliberate manipulations. By presenting extreme reactions as normal, it encourages victims to suffer those extreme reactions, and the Therapy Movement have been strongly instrumental in this. The more suffering rape victimes undergo, the more power the Rads and the Therapists get. That’s a disturbing consequence of the Trauma Narrative.
Off sex altogether, I remember seeing a chap on the telly who had been in the Piper Alpha oil rig disaster. He talked about how he made a decision to stop going to the “Counselling” sessions, because they just made him far worse; every time he was getting over his experiences, he was obligated by a therapist to wallow in them again. The people pushing these things don’t want people to just get over them, because then they’re out of a job.
Ian, I don’t disagree with you at all, but my comment was not addressed at yours as much as at sconzey’s. You and I are talking about two different aspects of the issue. What I’m trying to get at is that while in many ways sex is just sex, in some important sense it really isn’t.
Alisa, sorry, I sort of waffled on as is my way. My point was that the relative scale incorporates all aspects of whatever crime is discussed and that the “in some important sense it really isn’t.” part has been artificially and deliberately inflated in recent years.
Yes, it has certainly been inflated, but it doesn’t mean that it doesn’t exist in the first place. Unlike with your shell-shock example, rape was always considered a serious matter, albeit maybe not nearly as serious as it is today.
I would feel more sympathetic for the women asking for anonymity if rape had not been extended to include “drunken sex” and/or “morning after regret”, and “OMG he didn’t use a condom”.
These have all been introduced into the definition at the urging of the über-feminists, thus turning a seriously violent crime into a weapon against men in general. As such, these feminists have given up the right to have rape, and its victims, treated in a special manner.
I’m all for the special treatment of women in a social context — I am fearfully old-fashioned in that regard — but my respect for women disappears when that respect may be used against me in a court of law, if I may be excused the paraphrase.
In the U.S., of course, it is enshrined in law that the accused has the right to face his/her accuser. That principle has been sidestepped occasionally in cases where the accuser is in mortal fear of the accused — but ya gotta prove to a judge that your fear is justified.
I really wish that the victims of rape (male or female, by the way) can have their identities shielded in the case of violent rape. But the feminists have reaped what they have sown, on this regard. Too bad. It’s like women demanding the “right” to play sport against men on the same field, then asking for special treatment or rules because they are women. Nuh uh, ladies.
The names have been out there since this broke.
it would have been quite ironic for the owner of wikileaks not to be able to leak his accuser’s names…
I’m a public prosecutor by profession in the United States, and hate rapists as much as anyone out there. This is two bald men fighting over a comb.
Here are some facts and my opinion at the end.
Even in England, there is no anonymity for accusers of rape. First, the police and the defendants (and their actually lawyers) know who they are. If there is a trial, the judge, jury, and court staff will know.
Second, the people in the victim’s own world WILL know. It’s like chemotherapy (British spelling chaemaoethaereapiey), you can’t hide it. And the defense lawyers will make sure of that.
And it’s 2011. Anyone who WANTS to find out can.
The only “anonymity” is provided by the fact that a law might prevent media outlets from mentioning the name.
In the ordinary case, that makes little difference. The general public don’t really care, and if everyone you know knows already, what real matter if it’s on page 4?
In the extraordinary “star” case, like this one, we see how that works.
My opinion, FWIIW, is that rape victims, like all crime victims who stand up against criminals are HEROES. We ought to celebrate and praise their bravery.
I have news for you- ANY victim of crime who talks is at risk. If protecting victims is what it’s about, then “anonymity” ought to go to all crime victims.
I also believe that all parties in every case should have the same treatment. If we’re about anonymity until there is a finding, then do it like we do juvenile court. Everyone’s involvement is a secret.
My experience leads me to believe that special hoo-ha about rape works to the advantage of rapists and the disadvantage of victims and justice. It mystifies this particular crime. I believe it actually increases the injury to tell victims that it is all special. Believe me, they know better than any unraped do-gooder exactly what it means.
What I am trying to get across is that all the magic invests the rapist with some sort of special power, with the ability to somehow stain his victim with an indelible social mark.
That’s wrong, and it badly disserves victims.
Rape is something that happens to you. It seldom has anything at all to do with the victim, she is just there. *
To say “Ooh, people will think differently about her” just enhances the power of the act.
Ian B. is dead right. Being raped and being stabbed say exactly the same moral thing about the victim- nothing at all. Standing up and speaking out, despite what happened, says a lot no matter which crime it was.
*(It may have a lot to do with her behavior and safety choices, because most victims of violent crime in this country are doing something dangerous. But it’s not about her moral character.)
Naomi Wolf will be featuring on the BBC World Service’s World Have Your Say program this evening on this issue (World Service – 6-7pm GMT). The program is a live, global discussion very much driven by listeners. Naomi will be live on the program. If there are any Samizdata readers out there who have experienced rape and would like to put a question or comment (directly or indirectly) to Naomi, feel free to get in touch with me – Kathy (producer) at worldhaveyoursay.com. For more details of the program: http://www.bbc.co.uk/blogs/worldhaveyoursay/
I’m not convinced that’s correct. It presupposes that one can accurately imagine a future in which one has become a victim of a crime and compare that to accurately imagined futures in which one has become a victim of other crimes. At first this seems like a reasonable proposition, presumably because we’re accustomed to making such judgments about more mundane things, such as which lettuce to buy. We’re so accustomed to it that we forget that it’s a skill learned by regular practice.
Never having been the victim of any crime, I don’t think I can imagine how I would feel as a victim of any serious crime with much accuracy. IanB seems to think it a forgone conclusion that I would choose rape over most other kinds of serious assault, and he could be right. But neither one of us has any way of knowing, until we’ve gone through both experiences, whether our a priori judgement matched our post hoc reality.
The kind of thought experiment that IanB and Alisa propose can really only be valid when it’s carried out by someone who has been the victim of both crimes being compared. Now that I think of it, that would make an interesting bit of research!
Tedd, I specifically addressed that-
It’s a problem that faces also for instance economic surveys; you don’t really know what you will buy until you buy it (and hence another reason economic planning fails compared to the market). The only way to really know would of course be practically unfeasible, which would be to have a person really face all these crimes and see what they choose. You could do the experiment, by subjecting people to these choices unaware that they are in an experiment, but it would of course be rather unethical.
Nonetheless, with that caveat in mind, the experiment is, in its way, done regularly. People threatened with various forms of violence as proposed usually submit to the rape. We can draw a similar conclusion from muggings; most people would rather lose their wallet than be stabbed or shot. We can thus conclude in the same way that most people feel economic loss is “less bad” than the stabbing or shooting; which justice systems normally acknowledge, by penalising thieves less severely than such assaults.
I’m with staghound, only I beg for anonymity because if my kids ever find out that I agreed with a LAWYER, the shame will be more than I can bear…
IanB:
No, not really. You addressed the issue of someone choosing what they think they ought to choose as opposed to what they really want. But that was not my point. My point was that there’s an epistemological problem with making choices about violent crimes that does not exist with strictly economic choices. Every day, I make choices about what shoes to buy or whether to put my investments into stocks or bonds, and have done so all my life. It’s a rare occasion that I’m faced with such a choice for which I don’t already have a wealth of empirical data on the outcome. But if you ask me to choose between, say, rape and stabbing, how am I to choose? I’ve never experienced either, or even anything remotely like either. I simply can not imagine, in any plausible way, what my reaction to either would be and, therefore, ranking the crimes on the basis of my hypothesized relative scale is not reasonable.
If you make the scale coarse enough then its limitations start to fade. So, yes, I think you can reasonably make the argument that purely economic loss is “less bad” than violent assault. But that doesn’t mean that the method is accurate at ranking various forms of violent assault. Would I rather be stabbed than shot? There’s nowhere near enough information in the question to make a reasonable choice, even if I already knew what being stabbed was like and what being shot was like. Since I know neither, any choice I make is no better than a coin toss, for all practical purposes.
How serious a crime is judged to be (under law) varies over time, with the sentiments of the day. You may be right that we currently evaluate rape unrealistically with respect to other violent crimes, in which case it will eventually lose some of its current status. I don’t think we can improve on that situation by applying your thought experiment. To me, this is a case where the crowd is wiser than I am.
Tedd, just for the record, I don’t recall making any propositions on this thread – I was merely agreeing with one of the points Ian made.
To your actual point, I agree that a person who never experienced something cannot make a fully informed decision on that subject. However, some times in life we are required to make uninformed or only partially informed decisions. Thus, a person threatened with rape at gunpoint who has never experienced neither being raped nor being shot, is still required to make that choice. Consequently, it is entirely reasonable to ask the question what would most people choose in such a situation, and Ian’s proposition that most would choose rape does not sound unrealistic to me.
Tedd,
You don’t need to have experienced either, or to have personal data. You have a pretty good idea of what’s involved. I personally have no doubt; I’d bend over. It’s the obvious choice, on both a rational and emotional level, since both will be traumatic but one is likely to kill or permanently maim me, and the other one isn’t. We know also that my choice is the one predominantly made by other people in the real situation, and that is why rapists (and muggers etc) threaten people with knives and guns.
I think you are close to arguing for the sake of arguing here.
It is specifically my contention that I do not have a pretty good idea of what’s involved. I have virtually no idea what kind of psychological trauma would follow from being raped. I don’t even really have much in the way of minor psychological traumas to draw on, by way of comparison. Being as subject to the normal human tendency toward hyperbolic discounting as anyone, I’m likely to choose the option that presents the least obvious short-term physical pain or loss.
But, really, the choice you’ve presented in your thought experiment seems extremely unrealistic from the get-go. People aren’t forced to choose between rape and some other kind of non-lethal assault. They’re forced to choose between rape and death, or the plausible threat of death. (Or they’re forcibly raped even when they physically resist.) I doubt there’s much in the way of non-hypothetical evidence to support your assertion at all!
But, even in the event of an actual case such as you described, where a person was forced to choose between rape and some other kind of non-lethal assault, the person’s choice still doesn’t tell us much more than a hypothetical choice would, since they have no realistic way of assessing the true consequences of their choice other than what they very imperfectly imagine.
Your argument seems to be premised on the belief that any longer-term, psychological implications are just the result of flawed social conventions. But, even if that were true, it would not change the fact that those implications exist, for most people. To say that we should ignore them because some superior rational analysis shows they’re not reasonable is putting the cart before the horse. You have to change the social convention before you can make not following it a condition of being a reasonable person, in the legal sense. And that would be true even if I believed that your form of rational analysis was superior, which I do not in this case.