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Report No. 84

5.6. Need to modify general rule.-

We may state that the broad principle of publicity can be modified where the Court thinks that justice could not be done at all if it had to be done in public.1

The proposition that 'where secrecy begins justice ends' is one held by most lawyers as sacred. However, in the area of rape, and indeed of all the serious sexual offences, there is a particular burden on the complainant and on the accused with the real risk of Courtroom defamation repeated in the press, which may subsequently be found by the Court to be totally unjustifiable.2

It is for this reason that in England, the National Council for Civil Liberties3 in their pamphlet on The Rape Controversy, said-

"The law should recognise the fact that there is still a stigma attached to rape from which the victims may suffer for years afterwards."

We would wish to extend this view to include the stigma that may attach itself to the accused for years afterwards even following an acquittal. In this context, it should be remembered that the making of an allegation of rape against any man imposes upon him an equally unpleasant, humiliating and embarrassing experience in respect of which he should be entitled to the same protection as may be accorded to the alleged victim.

1. Scott v. Scott, 1913 AC 417 (437).

2. British Academy of Forensic Sciences Memorandum on Rape, (July 1976) Medicine, Science and the Law, 154, 155.

3. National Council for Civil Liberties The Rape Controversy, (1975).

Rape and Allied Offences - Some Questions of Substantive Law, Procedire and Evidence Back

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