Coverage is missing mark on anonymity ‘rights’ of sex crime victims

She has challenged the legal system on her experiences in the witness box and challenged universities about their admissions policies after the man ultimately convicted of sexually assaulting her was able to transfer out of his degree programme into another institution while his prosecution was pending.

You can only admire this young woman’s courage and determination to take her story into the public domain. She has spoken powerfully about her desire to channel her pain into social change. “If I can help even one person, then that’s enough,” she said.

But there’s a line routinely incorporated into the coverage which is seriously misleading. From the BBC to the tabloid press, broadcasters and newspapers have reported that Ellie Wilson has “waived her right to anonymity” to go public.

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Reading this, most folks are likely to nod along. The assumption that victims of sexual crime have an “automatic right to lifelong anonymity in UK law” is one you encounter day and daily in the media. In my experience, the idea complainers have such a right is taken for granted not only by much of the general public but by seasoned criminal lawyers and experienced journalists. And until January 2020, it was my understanding of the law too.

But it isn’t so. As Scots law stands, Ellie Wilson had no legal right to anonymity to waive. Folk are generally stunned to realise this. I certainly was. In England, Wales and Northern Ireland, reporting restrictions automatically apply to sexual cases – and have done since the 1970s. But in Scotland people who come forward as victims of serious sexual crime have no such protections.

The potential consequences are stark. Unless the court hands down a special order under the Contempt of Court Act once a case gets underway, it means that anyone with thumbs, opinions and an agenda could spread the news about a complainer’s identity in an upcoming trial without facing any legal consequences.

Under Ofcom regulations and the Editors’ Code, broadcasters and newspapers have professional obligations not to identify people in these circumstances without their express consent. But this is a gentleman’s agreement – not an enforceable right. And in the social media age, ethical codes have far less purchase.

Having identified this gap in the law, I figured I should do something about it.

It’s all very well academics sitting on the sidelines, taking learned potshots at laws we disagree with and suggesting somebody else should do something about it.

But if you will the end, you should will the means. So in September 2020, I launched the Campaign for Complainer Anonymity at Glasgow Caledonian University (GCU) with my colleague Seonaid Stevenson-McCabe and student volunteers from our LLB programme.

We wanted to understand a few different things. First, just how far out of step is Scots law with the rest of the common law world? Second, what does the Scottish public think about this area of law? And third, we were determined to get reform on the political agenda and fix this problem. I also wanted to show our students that the law isn’t some abstract system which sits high above them. I wanted to show them they can be active citizens.

When does anonymity start, when should it end, and who decides? Since 2020, we’ve looked into how twenty different common law jurisdictions deal with these issues. From New Zealand and Ireland to Canada and Bangladesh, we found that Scotland is out of step not only with the rest of the UK but with most of the rest of the common law world.

Only the Americans have set their face against the idea of any reporting restrictions. All of the other jurisdictions we looked at have put in place clear rules about what you can and cannot put in the public domain in sexual assault cases. “But what about the accused?” Of the 20 jurisdictions considered in our study – only Ireland and New Zealand extended anonymity to alleged perpetrators.

In recent years, campaigners have shaken up the laws in Tasmania and Victoria after they discovered that the states had effectively enacted “victim gag laws” for sexual crime, which banned not only the media but victims from talking publicly about their own experiences.

Dragged into the spotlight by Grace Tame and Nina Funnell, the #LetHerSpeak campaign successfully advocated for laws which recognise that anonymity laws are there to protect the dignity and privacy of people who say they’ve been a victim of sexual crime – but also respect their autonomy and right to share their experiences in public if they feel comfortable doing so.

This might be through their own social media platforms, or in cooperation with the wider media like Ellie Wilson. In the light of the #MeToo campaign, laws criminalising victim disclosures or subjecting that decision to judicial sign-off seem stunningly unjust.

Combing through the statute books of Australian states and territories we found inspirations for how Scotland could reform this area of law – but we also found that well-intentioned reforms could have unintended consequences. We held a symposium in GCU this week, trying to tease out some of these questions.

Should anonymity be lifelong, or permanent? Should survivors be able to “tailor” their consent to go public?

In some Australian states, they can authorise their story to appear in one newspaper but not in another. But how does this work with secondary publishers on social media sharing the material without express consent?

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And in principle, can it be right that it is a crime for one newspaper to publish content which a competitor is freely reporting? In some legal regimes, a police report causes anonymity rights to kick in. But as Rape Crisis Scotland have pointed out what about people who never take their case to the authorities, or who choose to raise civil cases instead?

In New Zealand, judges are involved in authorising people to waive their anonymity. But in principle, why should the courts be involved here at all?

Factor in other considerations.

The cost of going to law, the emotional labour of instructing lawyers, the disempowering sense of needing someone else’s permission to talk about something which happened to you. We think there are powerful arguments to say people should be entitled to waive their anonymity on their own terms, keeping the courts out of it.

Then there are younger people. Internationally, many jurisdictions have special rules governing how children can waive their anonymity, involving judges in the process. But say a 17-year-old takes to their social media and shares the fact they have been a victim of sexual violence.

The idea that they should be prosecuted for violating their own anonymity would be absurd, but to echo a theme which has been debated in other contexts this week, how old should you have to be to give informed consent to your story being splashed over the national media?

These are trickier issues.

One thing is clear: the Scottish public overwhelmingly support the idea of complainer anonymity. We shared some of our findings in the new edition of the Edinburgh Law Review, published this week.

Polling we commissioned from the Diffley Partnership showed that 73% agree with the proposition that “people who say they have been the victim of a sexual offence should have the right to anonymity for the rest of their lives, preventing them from being identified in the media or on social media” including 68% of men and 78% of women.

A total of 88% of our respondents disagreed or strongly disagreed the media “should have the right to identify people who say they have been the victim of a sexual offence, whether or not they wish to be identified.”

Similar findings applied to unauthorised disclosures via social media. Women were generally more supportive of complainer anonymity in all circumstances than men – and more younger folk backed the principle more strongly than older generations – but across the piece, this is a policy with clear public support and cross-party consensus in Holyrood.

Change is coming. Pledges to reform the law appeared in Scottish Tory, Green, LibDem and SNP manifestos in 2021. Labour have since indicated they are on board too. The Scottish Government have committed to incorporating the policy into a new Criminal Justice Bill, due later this year. This is an opportunity to learn the best lessons – and avoid the pitfalls – experienced in other jurisdictions.

There is no wrong way to be the victim of sexual violence. Some will prefer to retain their anonymity – while others like Ellie Wilson will choose to speak out. As it stands, Scots law protects neither of these choices. Thoughtfully reformed, it can.