law – The Daily Opinion

Anonymity of the accused in rape cases

In light of the recent arrest of Tory MP Nigel Evans for rape and sexual assault, the Government may be questioning itself as to why it decided not to extend anonymity in rape cases to the accused. If it had taken up this issue and made changes to the law in order to protect people accused of rape and sexual assault then the public would not currently be aware of Nigel Evans arrest. The only time the public would become aware was if he was convicted.

The Sexual Offences (Amendment) Act 1976 introduced anonymity to victims of rape and sexual assault. This created a lifelong ban on their identity being revealed unless they choose to identify themselves. This anonymity is given to victims largely due to the stigma that comes with being a victim of such an intimate and violating offence.

Anonymity for men accused of rape is not a new idea conjured up by the latest coalition government. It was introduced in 1976 by the Labour Government and repealed by the next Conservative Government in 1988. The Liberal Democrats included it in their 2006 party policy and the current coalition Government proposed introducing it into law only a few years ago. The topic was dropped without being taken forward on the grounds that there was insufficient evidence that a new policy was needed.

Granting anonymity to a person who is not yet guilty of a crime arguably coincides with one of the fundamental principles of the law in the UK – the notion of being innocent until proven guilty.

There are clear grounds for the argument that men accused of rape should remain anonymous unless they are proven to be guilty by a court of law. The stigma attached to being accused of rape or sexual assault is such that it affects the accused’s entire life and their family’s lives. The accused may lose family and friends, their job, be subjected to violence or harassment or have to leave the area in which they live. This is particularly true of a person in the public eye whose accusations are documented throughout the media. If a person is found to be innocent or the accusations are withdrawn then there is often less media attention surrounding this type of story. Many will therefore be assumed guilty, even without trial. Many people believe that a person should not have to experience this if they have done nothing wrong. If they remained anonymous this would never happen.

However, there are also reasons why the accused should be ‘named and shamed’. Arguably, being accused of rape or sexual assault is no worse than being accused of other offences such as child murder. If anonymity is given to one offence then a snowball effect may occur and anonymity demanded for all sorts of offences. One of the features of the justice system in the UK is that it is open to the public. If people accused of crimes are given anonymity then the public will no longer be able to attend criminal court and have the access to the legal system that is currently in place.

Granting anonymity to an accused means that there can be no public appeals for more victims to come forward. In cases such as that of Jimmy Saville, this could have been potentially disastrous. If he had been alive and capable of being prosecuted a lack of victims could have meant that charges were never brought against him. The fact that the allegations came to light after his death would mean that had anonymity been in place the public would never have been made aware of the accusations.

A further argument put forward for accused people to not be granted anonymity is that it is disrespectful to the victim. This may be true in cases where the accused is guilty, however, in cases where the allegations are false and the accused is entirely innocent the lack of respect appears to be aimed at the accused rather than the other way around.

It is unlikely that this issue will be resolved to everyone’s satisfaction. Any form of censorship should not be taken lightly and granting anonymity to a person accused of a crime has an effect on the way the justice system works. The Coalition Government may now be regretting the decision to shelve the idea in the light of the recent accusations; however, to rush into a change in the law is likely to be reactive rather than a logically decided and necessary amendment.

Changes to the law on dangerous dogs

Amidst news of the death of Margaret Thatcher, the death of the young girl Jade Anderson, who was mauled to death by dogs when she went to a house to visit a friend, was largely overlooked. Yet this story is of great significance when it comes to light that no crime was committed and so there will be no consequences for the owners of the dogs.

The problem with the current law

The Dangerous Dogs Act was introduced in 1991 and attempted to set out what a ‘dangerous dog’ is, as well as allow for the prosecution of owners, or people in charge, of the dog if the animal were to attack somebody. The law has come under heavy criticism for not wholly achieving this aim.

Certain types of dogs were made illegal to own: Pit Bull Terrier, Japanese Tosa, Dogo Argentino and Fila Braziliero. However, the legislation recognises that it is not so much the name or breed of the dog but its temperament that makes it dangerous. Therefore, it is the characteristics of the dog and whether it resembles any of the four types of banned breeds that will determine whether it is dangerous or not. If any breed of dog were to demonstrate violent tendencies then the courts may insist on its destruction; however, owners may also request that the dog be exempt. It was also made illegal to breed any dog for the purpose of fighting.

The legislation also makes it an offence for a dog to be out of control in a public place or a non-public place if the dog is not permitted to be there. This would include any person’s house who had not given their permission for the dog to be there. ‘Out of control’ is not specifically defined in the Act but references to injuring a person or there being reasonable belief that a dog may injure someone are made. It has therefore been interpreted that ‘out of control’ means either that the dog has attacked or attempted to attack a person.

This arguably leaves a huge gap in the legislation, namely the situation where a dog has not been categorised as dangerous but nonetheless attacks somebody on the property on which it is housed. This is the unfortunate situation Jade Anderson found herself in. She was attacked by dogs at a house she went to visit where the dogs were permitted to be.

For this reason no actual offence has taken place and so the police are not looking to make an arrests as they are bound by this wholly inadequate piece of legislation.

Does the law need reform?

There are hundreds of thousands of dog attacks in Britain every year and many of these will take place in areas where the dogs are permitted to be and so will not be covered by the legislation. Thankfully the majority of cases will be minor, however, when there are no consequences for the owners when a person is killed by dogs there is a deep injustice in the system. This feeling has been reflected by an e-petition entitled ‘Justice for Jade’, which has received over 9,000 signatures.

Whilst the law is arguably fairly adequate for classifying dangerous dogs and prosecuting owners of dogs out of control in public places, there is a strong argument that any dog in the right (or rather wrong) circumstances could be dangerous, whether it has demonstrated characteristics of the four types of banned breeds or not. Allowing people to have potentially out of control dogs on their premises not only puts themselves and their families and friends at risk but also unsuspecting people who are required to visit the property – the postman/woman, a delivery driver, gas or electric meter reader. There are numerous people who are legally allowed access to private property and the law should protect these people. Of course, changing the law so that owners can be prosecuted will not stop people having out of control dogs on their property, however it may make some people reconsider whether their dog is safe to own if they are aware that they face prosecution of a fine or imprisonment.

What is the government proposing?

The Government has been proactive since the death of Jade Anderson and has published draft proposals for new legislation. These proposals allow for owners to be prosecuted if their dog attacks somebody on private property, whether it be their own or someone else’s. The requirement that the dog is not allowed to be in the area has been removed, which should, in theory, close the loophole. The consequence of a conviction under this new law would be a maximum of two years’ imprisonment and/or an unlimited fine.

What about trespassers or burglars?

At this stage the new law will still not cover situations in which burglars or other trespassers are attacked. The debate surrounding this issue is still ongoing as many believe that people should have the right to protect themselves and their property, using dogs a guard if they wish. Others believe that if a person trespasses or commits an offence they should still be owed the same duty of care to be protected from dangers such as dogs. It will be interesting to see whether this part of the legislation changes on its way through the process or whether it will remain that burglars and trespassers are not protected.

The proposed reforms appear to keep the satisfactory parts of the law – any dog may still be regarded as dangerous, regardless of breed, if it demonstrates the correct characteristics. It also appears to rectify the unsatisfactory law currently in place by closing the major loophole was left open by the previous law. However, there is no timetable for when this new legislation may appear on the statute books. Hopefully this draft proposal will not merely be a reaction to the tragic death of a young girl and will be taken through the stages as quickly as possible so that people can be brought to justice and workers who are required to enter private property can feel safer in their work.

Old Habits Die Hard: Why the Church of England Won’t Support Gay Marriage

The Church of England is an institution with roots reaching far back into British history. It has presided over changes in law, monarchy and societal trends, and it has updated itself (albeit reluctantly) in order to reflect movements in national thought. So why is it digging its heels in so strongly over the proposal to include civil partnerships within the definition of marriage?

As one irreverent wit recently highlighted on Facebook, it is ironic that the Church of England is making a fuss about changes to marriage law when it was itself created by Henry VIII so that he could get a divorce, something that the Catholic Church would not allow him to do. Humour aside, however, and after much research, I think I’ve finally worked out what their problem is – but before I release this particular puppy from its catapult, let’s have a quick review of how I reached my conclusion.

I wasn’t convinced by the line in the papers about how passing this legislation would undermine the Church’s status as principal administrator of State marriages in the UK and alter the meaning of marriage for everybody (with the implication that this would be a bad thing). I really don’t understand how this claim can be substantiated. For one thing, the C of E’s own website states that, in the present day, “more than a quarter of all marriages in England take place before God in the traditional setting of a Church of England church” – I’m just going to assume I’ve misunderstood something fundamental about the definition of State marriages, because “more than a quarter” does not constitute the lion’s share. (If you have a decent explanation for me, please leave a comment.) For another, why would including gay couples in the definition of marriage dilute the meaning of marriage itself?

The Church appears to define marriage as being between a man and a woman because matrimony is first and foremost a precursor to procreation… so why doesn’t it have a problem with elderly hetero couples getting wed for reasons of companionship? They sure as hell aren’t marrying because they want to have kids. And does this mean that infertile couples’ marriages are also invalidated in the eyes of the Church because their union won’t produce offspring? In the Church’s opinion a loving, stable relationship, sanctioned legally through marriage, is the best environment in which to raise a child – those who enter into a civil partnership are making the same level of commitment, so how could this water down the meaning of marriage?

My search for a coherent, reasoned argument – unsurprisingly thwarted by trawling through online media – took me to the Church of England’s own website, where they’ve put up an explanation regarding the Church’s views on civil partnerships and the current proposed changes to “marriage”. Their statement was revealing. While the Church supports civil partnerships – or “friendships”, as the Archbishop of York calls them – it maintains that a “marriage” is traditionally between a man and a woman and that the State has no right to change this – doing so would, in fact, change the definition of “marriage” for everyone. It also maintains that it is arguing for the protection of “marriage” – not just religious marriage but civil marriage as well – and that anyone suggesting that religious marriage be treated separately is failing to acknowledge the Church of England’s established role in providing State-recognised marriages to religious and non-religious couples alike.

This is a pretty weak argument, for several reasons. Firstly, the Church would appear to be advocating the stagnation of British law in order to protect the status quo (primarily for itself, that is, as society needs change in order to remain healthy). I would argue that even the Church, although admittedly long established and still to some extent involved with law-making in the UK, should not have the power to halt the evolution of our legal system just because it doesn’t like the proposed changes. To say that it is trying to protect the definition of both religious and civil marriages actually weakens its position – if separate definitions of religious and civil marriages existed, then to change the definition of civil marriage would in no way affect the definition of marriage for those who might object on religious grounds to the inclusion of same-sex legal partnerships within said definition. And for any married, hetero couples who might object on non-religious grounds, surely the redefining of marriage as “a state into which two people may enter, who love one another and wish to take on the legal responsibilities and benefits that such an arrangement would bring” could draw no objection, as it would be a blanket definition that applies to everyone and would therefore take nothing away from the meaning of a marriage between a man and a woman.

The Church also argues that there is no need to redefine marriage, as civil partnerships provide the same legal rights to same-sex couples as marriages do to straight couples. (I looked this up – they’re virtually identical. There’s some different wording, obviously, but that’s about it.) So, in fact, what we have currently, in our already highly complex legal system, is two ways of saying the same thing – isn’t this a bit pointless? If civil partnerships and marriages provide the same things to couples, and marriages aren’t exclusively religious, and all partnerships are recognised as equal in the eyes of State and Law, why as a society do we need to have one “traditional” and one “modern” definition of love-based partnership?

The Church of England really shot itself in the foot when it allowed gay people to become vicars, as it very publicly and officially put aside the Bible’s argument against homosexuality when it did so. Now bereft of that religiously-sanctioned homophobia, it is forced to come up with weakened, trivialised nonsense in order to try and hang on to marriage as the sole purview of the straight. What the Church now has, in fact, is a percentage of its religious representatives who are forbidden by their own institution to wed! Oh, you’re a gay vicar? That’s progressive; isn’t that cool that you can continue practising your faith without having to deny your sexuality… Oh, but you and your partner have to remain celibate, and your Church won’t let you marry your partner, in the sight of your own God or otherwise, despite your devotion and unshaken belief? That’s… fucking nonsensical, hypocritical, degrading and tragic. What kind of “organised” religion are we dealing with here?!

I think what the Church of England should really be concerned about (and perhaps it is, deep down) is the potential schism looming between those religious organisations that wish to perform marriages for same-sex believers and those that think marriage can only be between a man and a woman. It has, in fact, already garnered a backlash from some of its own vicars for its arguments against the inclusion of same-sex couples in the definition of marriage. Additionally, as the proposed legislation would actively disallow gay marriages in a religious context, the Church is potentially looking at some serious future arguments in the European Court of Human Rights. But as the C of E survived the admission of gay vicars, so I suspect it will survive this, with a mixture of grudging compromise, popularity contest antics and no doubt more embarrassing statements along the way.

So, after my “quick” overview… my conclusion? Rather anticlimactic, I’m afraid: that the Church is afraid of change, paranoid over losing its grip, and confused about what exactly, in the modern day, it really believes.