Sometimes publication bans that aim to protect victims end up obstructing justice and protecting perpetrators.
To name, or not to name: that is the question editors and reporters often have to ask themselves, in every newsroom.
These difficult decisions are often complicated by publication bans that prohibit the reporting of certain information in open court proceedings. The courts mandate them, and journalists navigate them.
A common type of publication ban prohibits the reporting of any information that could identify child victims of crime, and victims of sexual assault. The bans are a necessary part of the criminal justice system meant to protect “public interest,” allowing victims to feel comfortable coming forward and protecting their safety and dignity, according to case law.
They are statutory bans written into the Criminal Code and imposed when requested by a lawyer. That doesn’t mean they are cut and dried.
Here’s an example:
A man is charged, and eventually sentenced, for repeatedly assaulting and sexually assaulting his girlfriend.
If the man’s name is published, the publisher runs the risk of identifying his girlfriend, if their relationship is described. If the relationship is not described, the heart of the offence — domestic violence — is hidden.
Reporting the important details of domestic violence, but withholding the offender’s name to comply with the ban, strips away accountability and prevents potential future intimate partners from knowing who committed the offences.
Here’s another common example:
A step-parent is charged, and eventually sentenced, for sexually assaulting their stepchild. If the parent’s name and the familial relationship are reported, there’s a risk of identifying the child, regardless of whether they have different last names.
In such cases, not specifying how the perpetrator knows the child victim can create misleading inferences that these are random offences. Public safety often plays a role in the ultimate decision to name or not to name.
Reporting the facts provides that necessary information. A step-parent sexually abusing their stepchild is a different public safety issue than a coach, teacher or babysitter sexually assaulting players, students and other children.
When the offender and victim are related, the cautious approach is to withhold the offender’s name to protect the victim while reporting the specifics of the incident.
But lifting the veil on that aspect of secrecy creates another aspect of secrecy — a concerning Catch-22 where the publication bans put in place to protect victims inadvertently protect their perpetrators, too.
Some reasons to name a perpetrator include high public interest, when someone is charged with a serious offence, when someone is a repeat offender or when someone is in a position of trust and authority.
What if someone in a position of trust and authority is accused of abusing their niece? The worlds of public protection and victim protection collide, and the balancing act begins.
Exactly how far the net is cast when it comes to “identifying details” is left up for interpretation.
“I think it’s recognized that the immediate family members of the involved individual (are) going to know about it. So I think it’s really intended to be the stranger on the street … somebody who might know (the victim), but not know that they’re involved. Would they be able to identify them from the article, from the news story — that they’re talking about the person protected by the ban?” Saskatoon media lawyer Sean Sinclair says.
For instance, publishing the name of an uncle who has a different last name from the niece he assaulted may still protect the greater public from being able to automatically identify the victim through, say, a Google search.
“That’s more of a contextual analysis. A lot of the time, it’s going to be, frankly, easier and less risky for most media organizations to take the more cautious approach and simply not name a parent for fear that it could identify the child,” Sinclair notes.
A Saskatoon provincial court judge recently clarified a statutory ban preventing the publishing of any information that could identify the child in a high-profile alleged abduction, where both the mother’s name and child’s name were widely reported because they were initially considered missing.
The order’s nuanced approach offered a much-needed specificity that is absent from the Criminal Code — helping achieve the ultimate balance of victim protection and transparency, and providing some guidance for the tough decisions journalists have to make.
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