Anonymity in Sexual Offences: A Scottish Law Reform Campaign?

This blog is the first in our series, “Gender (in)justice: Views from Scotland”, featuring pieces authored by legal academics at Glasgow Caledonian University. GCU Law has a strong socio-legal research culture, and this blog series draws on our research across diverse legal contexts. This blog series will explore recent legal developments and emerging legal challenges at the intersection of gender and justice in the law of Scotland. By publishing pieces exploring gender justice issues from a Scots Law perspective, we hope to inspire discussion and invite critical perspectives not only among researchers working in the Scottish context, but from our colleagues in the rest of the UK and beyond.   

By Dr Andrew Tickell

Keywords: complainer anonymity; criminal justice processes; sexual offences; privacy; legislative reform

The Campaign for Complainer Anonymity launched at Glasgow Caledonian University in September 2020.

Do victims of sexual offences have “an automatic right to lifelong anonymity under UK law”? This claim is routinely advanced in print and broadcast media. It is commonly used as context to justify why some complainants are not named in press reports, and “waiving their right to anonymity” is routinely invoked to frame decisions by survivors across Britain to identify themselves in connection with a case and go public about their experiences.

In England, Wales and Northern Ireland, complainants do have such rights. Originating in the 1970s, they’re now mainly found in the Sexual Offences (Amendment) Act of 1992. But in Scotland – there are currently no automatic reporting restrictions in sexual offence cases, and no anonymity rights for Scottish complainers to waive.

Unless the courts make a special order under section 11 of the Contempt of Court Act 1981 – something which rarely happens – then there are no legal restrictions on the press or the public identifying someone concerned in a criminal case.

The Editors’ Code provides that newspapers “must not identify or publish material likely to lead to the identification of a victim of sexual assault unless there is adequate justification and they are legally free to do so” – but bloggers, YouTubers and TikTokers don’t answer to press regulators. The evidence also suggests that some Scottish publishers have fallen short of this standard and have identified complainers in sexual offences cases.

Discovering this generally comes as a bit of a shock – to lawyers, academics, and complainers themselves, who often have a strong legal consciousness, as a result of routine inaccurate reporting, that this is one protection the law extends to them.

The prosecution and acquittal of the former First Minister Alex Salmond starkly highlighted the precarity of the existing framework – and the opportunity for reform. We launched the Campaign for Complainer Anonymity at Glasgow Caledonian University in September 2020. The campaign effort was comprised of both staff – Dr Andrew Tickell and Seonaid Stevenson-McCabe - and LLB students. The goals of the campaign were to raise consciousness about this gap in the law, to get reform onto the agenda of Scotland’s political parties, to undertake empirical research on public attitudes to complainer anonymity, and to conduct comparative law and policy research to learn the best lessons from international experience of introducing or updating provisions like this in the social media age.

This proved an eye-opening experience. Going back to the literature, the principled case for automatic reporting restrictions in these cases has evolved over the years. Complainer anonymity can be understood as a means of protecting the privacy of people who disclose their experiences of sexual victimisation – but also their autonomy to decide whether, when and if they wish to disclose their experiences.

As Clare McGlynn has argued, reporting restrictions in sexual cases have traditionally been understood as serving “a dual purpose: privacy and the administration of justice.”[i] But Temkin argues other factors should also be taken into account in justifying automatic restrictions, including “the unaccountable stigma which attaches to sexual assault victims and does not apply to other victims of crime” and the “salaciousness of the press.”[ii] To this, the impact of social media must now be added – both as a forum where improper disclosures might be made about complainers in these cases, but also as a space where victims can choose to disclose their stories and share their experiences. The law, we argue, must facilitate both choices.

The importance of building autonomy into any model of complainer anonymity for modern law was powerfully underscored by recent experience in Australia. The Let Her Speak campaign didn’t pick up much media traction in the UK, but powerfully highlights the adverse consequences of framing reporting restrictions in a paternalistic way which fails to recognise that some survivors of sexual violence want to share their stories and use their experiences to advocate for social and legal change.

Launched by campaigner and advocate Grace Tame and journalist Nina Funnell in 2018, the #LetHerSpeak campaign challenged what they called “victim gag laws.” Reporting restrictions in Tasmania didn’t just prohibit an intrusive media from reporting the identity of victims of sexual offences – but also prohibited survivors like Tame from telling their stories, forcing them to use pseudonyms and requiring them to undertake a lengthy, expensive legal process to receive permission from the court to talk publicly about what happened to them.

As Tame and Funnell point out, these restrictions have the obvious consequence of “silencing individual survivors who wish to speak out publicly, thereby increasing their sense of isolation, powerlessness and voicelessness” and risk “exacerbating existing trauma, through the further removal of control and denial of personal agency” by over-involving the courts in what ought to be questions of personal choice.

Separately in the state of Victoria, reforms designed to enhance the autonomy of victims of sexual crime had serious unforeseen consequences. As Burgen, Powell and Flynn point out, the Victorian government’s attempt to address the problem of victim gag laws created another problem.

Victorian legislators passed provisions which said in the absence of an express decision by a victim of sexual crime during their lifetime to share their story, anyone wishing to identify them also had to instruct counsel and go to law, persuading a court that it was in the public interest for the victim to be named.

If you are working on the basis that a now-deceased victim has chosen to maintain their anonymity during their lifetime and shouldn’t lose it after death – these rules probably seem reasonable and well-intentioned. In practice, however, these rules had the immediate effect of gagging the families of women who were victims of sexually-motivated homicides by criminalising public disclosures of their identifies and requiring them to apply to the court before they could share the terrible news that it was their partner, sister or daughter who had been killed.

Restrictions like this seem problematic from the perspective of freedom of expression, but they also raise broader issues of access to justice. In the aftermath of discovering that this has happened to your relative or friend, what partner, sibling or relative thinks of instructing lawyers and bearing the cost and delay of waiting for a judge’s permission to share this information? In response to public pressure, the Victorian restrictions have now been repealed.

The legislation had other problematic features, allowing victims to “tailor” their consent about how their stories could be published, restricting permission to publish their identity to some publications and not others, and in principle requiring any publisher – including the social media user who simply shares or retweets an online news article – to make contact with the victim to determine whether or not they consented to every single republication of their story, even if it had already lead the nightly news or been a front page story across the media months earlier. This has obvious potential to create legal incentives for publishers to contact victims of sexual offences again, and again, and again to ensure legal compliance to re-report information which was already in the public domain – while potentially criminalising ordinary social media users for sharing reports for reputable news stories, without having done the theoretical due diligence required of any “publisher.”

We took both Australian experiences as cautionary tales about how reform – inadequately stress-tested against experience – could cause more trouble than it solved, particularly in terms of extending reporting restrictions beyond natural life.

We were able to share these international insights with the Scottish Government at an early stage in the policy process, as they developed their proposals to put complainer anonymity on a statutory footing in Scotland for the first time. Key policy design questions included – when does anonymity begin, when does it end, and who decides? We also had the opportunity to give evidence in Parliament on these aspects of the reform proposals.

In September 2025, the Scottish Parliament finally passed the Victims, Witnesses and Criminal Justice Reform Bill, including provisions on complainer anonymity. Under the new Scottish rules, anonymity will apply to a range of sexual offences, including victims of image-based sexual abuse, not currently covered by English reporting restrictions. It will be an offence to identify a complainer or to publish information likely to give rise to their identification – normally called “jigsaw identification.”

Adult complainers will be able to unilaterally waive their anonymity without involving the courts in the process. Newspapers or broadcasters wishing to identify a child victim of sexual crime will need to apply to the sheriff court for permission to share this information – but critically, the under 18 who shares an Instagram post identifying themselves as the victim of a sexual crime will not commit a criminal offence, recognising that police and prosecution discretion isn’t an adequate protection for youngsters who share this information with the public or a section of it.

Recognising the reality of social media sharing of content, there will be a “public domain” defence available, where people share news reports identifying complainers and have no grounds to suspect it wasn’t published with their consent.

When the Bill finally comes into force, at long last, legal consciousness and legal rules will finally come together, establishing strong legal protections for complainers who wish to maintain their anonymity, while ensuring that anyone who wishes to share their story and go public doesn’t need to go to law, ask permission, or pay a penny in legal fees to do so.

References:

[i] C McGlynn, “Rape, defendant anonymity and human rights: adopting a 'wider perspective’” (2011) 3 CrimLR 199, 213.

[ii] J Temkin, Rape and the Legal Process (2002, Oxford University Press) 306