In Nova Scotia, a judge regretfully imposes a publication ban on the name of a dead teenager who was victimized by a peculiar kind of child pornography. All of Canada already knows her name and her face. Her privacy and dignity can surely no longer be violated. Her family wants her story told.
But once young men were charged with sexually related offences against her, Section 486 of Canada’s Criminal Code gave the judge no discretion. The Crown asked for the publication ban. The judge had to impose it.
Now, a Halifax newspaper that defied the absurd ban is under criminal investigation.
In Toronto, Jian Ghomeshi is charged with four counts of sexual assault and one count of choking. Last month, people praised the women who were brave enough to come forward publicly. Yet, once the case goes to trial, the names of the complainants, even those who have spoken to the media, will likely fall under the same mandatory publication ban.
If they want to be named, post-trial, they’ll have to go to court to fight for that right, with no guarantee of success.
In Winnipeg, police publish the name and photograph of a young woman, Rinelle Harper, who was sexually assaulted, then thrown in an icy river. As a result, they quickly arrest two suspects. By giving Harper a name and face, they help us see her as a person, not a statistic, and ignite an important community debate about violence against aboriginal women.
So here’s the question: In 2014, in a social-media age, should courts still automatically ban the press from publishing the names of sexual-assault complainants?
Or do mandatory bans reinforce social stigma and victim-shaming, and deny complainants the right to speak for themselves?
The law is designed to protect sexual-assault victims from public embarrassment and public judgment, to encourage them to report a terribly under-reported crime. The intention is admirable. But erasing a person’s individuality and identity can be disempowering. When we suggest sexual assault is so peculiarly shameful to the victim that she — or he — must never be named, we perpetuate medieval notions about sexual honour and purity.
Unwittingly, perhaps, we send victims the toxic message they should feel humiliated, they should hide their names and their shame to save us all discomfort.
“It rankles me,” says Edmonton media lawyer Fred Kozak. “Because sexual assault, as a crime, is about power and control, I think that whether or not you get to be identified, that power and control should always be with the victim.”
In most cases involving allegations of sexual assault, exploitation or abuse, says Kozak, the publication ban is mandatory.
“If the complainant or the prosecutor asks for the ban, the judge has no choice but to grant it. But what if the complainant says: ‘I don’t want it’? The judge can still impose a discretionary ban. And if the complainant says: ‘I don’t want it’ and the prosecution applies for one anyway? The judge has no discretion and has to grant it.”
Kozak recalls one case, involving a young man who alleged he had been sexually abused by a teacher. When the teacher was found not guilty, the man tried to tell his story. He applied to the court to have the publication ban lifted, but the judge refused.
Kozak fought all the way to the Supreme Court, which refused to hear the case. Years later, the publication ban remains in effect.
In another 1995 case, a judge sought to rescind the publication ban he himself had applied, after he found the alleged victim had concocted false charges to cover up her own crimes. In that case, the Supreme Court ruled the judge had no power to revoke his own ban, because that might discourage future sex-assault victims from coming forward.
Yes, the law was written to protect victims. But without the flexibility of judicial discretion, we’re left with ridiculous scenarios that protect no one and dehumanize people instead.
