D.J. Webb
I don’t have time for a long blog today. But I note with respect to the Ched Evans case that people are being condemned for unmasking the name of the accuser (aka the “victim”, if any real rape took place – a significant “if” if you read the details of this case), and apparently “forcing” her to move house several times.
Then there was the Mark Pritchard case. A Conservative MP accused of rape has called for “anonymity” to be granted to the accused.
I think libertarians will broadly agree that neither the accuser nor the accused should have anonymity. If a woman has been raped, she should be prepared to go public with the accusation and have her identity known. The idea that a woman can have a man imprisoned on an entirely marginal case of “rape” (date rape, footballer rape of someone who has gone to a hotel for the purpose of sex, etc), and then can be protected by the police from having to shoulder the consequences of that, including any social opprobrium that attaches to her for fabricating an allegation, is abhorrent. There should be no anonymous accusations.
By the same token, there is a public interest in knowing if someone has been accused, even if he is subsequently found not guilty. As people can (theoretically) only be found guilty of a charge proven beyond reasonable doubt, the law operates, or should operate, in such a way that many guilty men are found innocent. This is how it should be. But then someone who has had repeated accusations of a certain type raised against him, even if he has been found innocent of them all, may still find that social opinion against him responds negatively. Why should it be otherwise? Social opinion does not operate on a “beyond reasonable doubt” basis.
I believe that court cases should nearly all be open to the public. There may be an exception for genuine cases of national security. But in the main, we should all be able to troop along and listen to the progress of rape cases in court. There should be no anonymity. Justice should be public justice.
I will add that this business of granting anonymity to children who commit very serious offences ought to stop too. A 14- or 15-year-old who commits rape or murder is not behaving as a child. Real children don’t commit adult crimes. Family courts should also be open to the public. We read all of the time of children being taken away from a family by order of court, and that the smirking judge has facilitated this by an order of anonymity. We need to know what the state is doing to people.
In a free society, the courts of justice are an arm of the people as a whole, and not of the state bureaucracy. Open the justice system to the public in nearly every case.
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There is indeed a radical lack of balance. Either both the accuser and the accused should have their names kept private – or neither should have their names kept private.
The whole thing is a total mess. To put on my fairness hat, nobody should be hounded by mobs, whether accuser or accused. This is where I have trouble with the position many people take on “public opprobrium” as a legitimate force in civil society, and align somewhat with JS Mill.
I believe everyone is entitled to an opinion. I believe everyone is entitled to express it. But when that steps over a boundary into causing real misery or hardship to other persons, I feel very uncomfortable. I sometimes use this example: I am an atheist. As such, in some sense I don’t approve of Christianity. I might, if I am being unkind, waffle on about the Inquisition and all the deaths historically and do a Dawkins and all that.
But I think such criticism should remain restrained to nothing more than criticism. If I stand outside my local church yelling abuse at the worshippers, making them unhappy and fearful, I have crossed a line beyond civil society. However much I may disapprove of them, I think the more important principle is that they have a right to go about their business unmolested, and I think that this is the traditional English way of things, otherwise known as minding one’s own business. I think that this is a principle that we need to relearn if we are to be a free society again, since it appears to have been lost in many respects. The rape accuser- even if I disagree with the outcome of the case- should not be subjected to harrassment. It is a matter for the courts.
Unfortunately, this whole business is- due to progressives- driven into the realm of lunacy, and extremism is happening from both sides.
As to the matter of anonymity, of course it is a nonsense. The key aspect of justice is that it should be public. If the facts of a case- including the accuser- are not known, the public cannot participate. For example, a member of the public may know of some evidence that proves that the crime could not have occurred. Perhaps they were with the accuser on the claimed date. Perhaps they just know that the person is a serial liar. Whatever. If they do not know that the case is in progress, they cannot know to go to the police or defence lawyers. This means that only witnesses who are actively sought out are available; they cannot come forward of their own will.
The anonymity is based on a fabricated myth that to be a rape victim is somehow shameful. This is nonsense. I’ve never seen anything but sympathy in everyday life for victims of rape, like other crimes. The truth of it is that the rape lobby just want everything done behind closed (court room) doors, and it is time a stop was put to this nonsense.
Ian B, you are entitled to shun Christian believers, and to direct “opprobrium” towards them. Standing outside church screaming denunciation is actually harassment, which is a crime.
People don’t have to like someone who accuses a footballer of rape, but there is a certain type of behaviour that would constitute harassment. I don’t think the accuser should be harassed. People who know her might like to tell her she is making a fool of herself – which is not harassment.
This is an important point: the bar for “harassment” in a free society has to be high. I read that Prince William had a photographer (paparazzi) arrested or threatened with arrest for harassment for trying to photograph Prince George. But taking a photograph in a public place – especially of a prince – is not harassment – and I would say that the police overstepped the bounds to enforce Prince William’s dislike of photographers.
There may be certain actions that the paparazzi could do that would be harassment. Pursuing Princess Diana so fast that her car crashed strikes me as, prima facie, harassment. But we need to be careful about bandying about accusations of harassment. Harassment must be clear and severe to be actionable – but harassing someone who claims to be a victim of rape is actionable. Harassing an ex-con, like Ched Evans, could also be harassment, although I don’t think a Twitter campaign against him constitutes harassment.
Maybe a libertarian discussion of what harassment is would be valuable, as the issue constantly arises.
DJ, I agree. I am not proposing draconian harassment laws. I am in a sense talking about a matter of personal behaviour. I don’t think it is, in a general sense, libertarian to interfere with others going about their lawful business.
For instance, when I used to work in the West End, there was a “picket” outside a fur shop, 24/7. I do not think, personally, that this is libertarian behaviour. Selling fur is legal. That should be the end of the matter. Somebody who wants to make it illegal has a right to lobby Parliament. I don’t personally think, in the sense of everyday justice, that they should harass furriers. Where the law should stand on this, I am not clear I admit. But in terms of personal behaviour, I don’t think they ought to do it. The most basic principle of liberalism is that everyone should be free to go about their business unmolested. Ultimately disapproval should pretty much stop at non-interaction (e.g. I will not talk to you or serve you in my shop, etc), rather than active interference. That’s my view at what amounts to a gut level.
I would say a 24/7 picket outside a furrier’s verged on harassment – an attempt to harass workers and customers going in. But an annual demonstration outside a furrier’s would be more legitimate. I think the bar for harassment has to be high, to avoid misuse of the law against harassment.