The Danger of Anonymity and Secret Courts

Legal Principles
June 12, 2018
“Our liberty depends on the freedom of the press, and that cannot be limited without being lost.” ~ Thomas Jefferson

The role of the press in sexual assault cases is controversial. As we have seen since October of 2017, the Internet cannot get enough of sexual assault scandals and the #MeToo inquisition continues to claim names. Advocates for the rights of the accused are rightly concerned about the harm of unethical journalism in the court of public opinion and how easily a reputation can be ruined on the basis of unsubstantiated claims. As the recent Morgan Freeman fiasco has demonstrated, the press can be mobilized for slander campaigns on the basis of untested, anonymous complaints.

However, our society and our legal system, have shown increasing concern only about the potential negative implications of media attention for sexual assault complainants. In fact, in the Yukon, British Columbia, and Manitoba accusers are being offered anonymity prior to a formal criminal investigation, and sometimes in the absence of one. Their identity withheld, even from police. Although anonymous third-party reports won’t be sufficient alone for the police to make arrests, according to the Winnipeg Police Service sex crimes unit “having extra data handy could help them identify trends and serial predators.” In the same article, third-party reporting is further justified by the claim that it will provide more accurate statistics on sexual violence given that the crime is under-reported.

Third-party reporting will, without a doubt, result in an inflation of numbers. Uninvestigated claims of sexual assault are being treated as statistical data by the police to determine the scope of sexual violence in communities. Accusers are gaining the ability to report someone for sexual assault without identifying themselves and, more importantly, without possibility that their story will be scrutinized.

In BC, the process of third-party reporting begins with the alleged victim detailing the event to a member of a “community-based victim service program,” who acts as the third party. Without identifying the victim, the third party provides the police with a report of the event. From there, the police “evaluate the facts, start an investigation and take other actions that are appropriate, such as patrolling the area where the crime occurred.”

How can the police have the “facts” without knowing who the alleged victim is? Even if these reports may not result in charges against the accused, it is grossly unjust and irresponsible to create a database of sexual offenders on the basis of anonymous tips. There are no measures to prevent malicious allegations or collusion amongst accusers. We must conclude that the objective of third-party reporting is solely complaint solicitation, not the proper investigation of complaints.

The existence of a secret sex offender registry, where those registered are not aware of their inclusion and where inclusion is not based on even a direct police report, should cause outrage.

How has it gotten to the point where concern for protecting the identities of accusers of sexual assault has trumped concern for due process? The first step was to convince the public that the rights of complainants were indeed being threatened by allowing their names to be published. In the summer of 2015, the Canadian Victims Bill of Rights was enacted with the aim of protecting the dignity of victims of crime. The bill gives victims of sexual assault the special right to request a publication ban on their identity. According to the Department of Justice, publication bans “allow victims, witnesses, and others to participate in the justice system without suffering negative consequences.” More specifically, publication bans are intended to protect the “vulnerable,” such as children or minors, and to encourage testimony from those who might be otherwise deterred from participating in the justice system.

Sections 486.4 and 486.5 of the Criminal Code list other considerations in determining whether a publication ban will be granted, namely how it will limit the freedom of expression of others and how it will impact the right of the accused to a fair, public trial. Freedom of expression, in this context, applies particularly to the press and their ability to obtain access to the proceedings of the courts. The transparency of the courts, often called the open court principle, is a necessity for establishing trust in the legal system. Without openness, the public does not see how law is being practiced and, therefore, cannot determine whether it is being applied justly. No one thinks the courts should operate solely behind closed doors out of the public eye, but many are certainly privileging the interests of sexual assault complainants when these interests conflict with the public’s interest in open justice.

In 2013, York University law professor Jamie Cameron authored a very detailed report for the Department of Justice which shows how victims’ privacy rights, a relatively new concept, came into existence. As Cameron explains, having open courts matters because “a free flow of information encourages feedback and debate among members of the public, thereby promoting the accountability of institutions which exercise coercive powers against individuals.” This public value is protected by Section 2(b) of the Charter of Rights and Freedoms, which guarantees the freedom of expression and opinion of the public and the press. However, this freedom, like all constitutional freedoms, is subject to limitation by Section 1 if the limitation is “demonstrably justified in a free and democratic society.”

It is important to remember that publication bans are not always implemented for the benefit of the complainant. Sometimes the accused is a minor, and so their identity is concealed. There are also cases where protecting the presumption of innocence may necessitate a ban, not on the accused’s identity but on a piece of evidence. A publication ban may be ordered at a bail or preliminary hearing to ensure that the public, media and, sometimes, potential jurors will not be exposed to inadmissible evidence that may cause bias against the accused. Clearly, a limit placed on the freedom of the press in this case would be reasonable. It is less obvious, however, that publication bans on the identities of complainants can similarly be justified. The publication of inadmissible evidence heard in a preliminary hearing will always compromise the fairness of a trial, whereas the identities of both parties involved will always be relevant facts in the case.

According to Cameron, there is no specific section of the Charter that grounds a complainant’s right to privacy. Instead, this right was born out of a conjunction of freedoms: Section 7’s promise of “the right to life, liberty and security of the person” and Section 15’s guarantee of equality “before and under the law.” After analyzing the case law which has shaped the rights of victims in sexual assault cases, Cameron concludes that complainants “are granted preferential or special treatment by the system” over complainants of other crimes, where anonymity is the rare exception rather than the norm. She poses the question of whether sexual assault is so unique a crime that it warrants “distinctive rules.” Given that the rights of complainants, defendants, and the press can all be constrained by “reasonable limits,” we should also be wondering how to determine, when these rights conflict, which party’s rights can most justifiably be limited.

Open courts and freedom of the press are fundamental components of a free society. Individuals within the criminal justice system (i.e. judges) are given significant power over others, making transparency a necessary check on judicial activism. The press and the public must have access to proceedings of the court to prevent arbitrary rulings from determining what constitutes justice rather than public dialogue and debate.

Press freedom should be limited with respect to court activity if, and only if, the alternative would pose an evident threat to the integrity of the criminal justice process. In the earlier example of a potential juror reading a media piece containing inadmissible evidence, a publication ban on the hearing where this evidence was first heard is justified on the grounds that it protects the fairness of the trial and encourages journalistic responsibility.

Certainly, the right of the accused to a fair trial is of paramount importance because it is their reputation and their freedom that is at stake in the process. They are up against the resources of the state, which are being mobilized to try to prove their guilt. No matter how traumatizing the court process is for complainants, throughout the trial it is only the accused whose freedom is at stake.

The privacy rights of complainants is a more complicated matter. A complainant is entitled to the same dignity and respect as the accused, but it is not blatantly clear that privacy is a necessary component of preserving dignity. A common justification for publication bans on the identities of sexual assault complainants is the stigma associated with being assaulted. According to Marco Chown Oved, investigative journalist for The Star, “[h]ardly anyone would be ashamed of reporting their car stolen, but admitting you’ve been raped has led, in other countries, to forced marriage with your aggressor or even honour killings by relatives. Those attitudes are present in Canada as well.” In the wake of the overwhelming support for the #MeToo movement, however, this argument is becoming increasingly untenable. As a culture, we do not condemn those who bring forward allegations of sexual assault. We applaud them and take immediate action against those accused, especially when those accused hold positions of power and influence.

Which is more stigmatizing – being presented to the public as the alleged victim of sexual violence or as the alleged perpetrator? If stigma was a sufficient justification for anonymity in sexual assault cases, it would provide a stronger case for a publication ban on the name of the accused. Of course, when a complainant makes an accusation there is no guarantee that they will receive only positive media attention. As we have seen with the Jian Ghomeshi trial, for example, coverage of a public trial can result in critical analysis of complainant testimony. There is a very real possibility that complainants will have their credibility publicly doubted and the details of their account scrutinized. But this is the way it should be, and the way it must be. Incentivizing women to bring allegations into the criminal justice system in higher volume cannot be the objective of sexual assault legislation without proper care towards the quality of the claims before charges are laid.

The fact is that no one exits the system feeling better. Trials are taxing physically and emotionally, for both complainant and defendant. We do not want to disincentivize real victims of sexual assault from going to the police, but the onerousness of the system is a safeguard. Without the guarantee of anonymity, a greater number of frivolous or vexatious accusers would be weeded out. This would allow court resources to be focused on those cases where there was a great harm done to the complainant, and especially cases where the accused poses a legitimate public safety threat. It is not that publication bans should never be imposed, but rather that they should not be granted to sexual assault complainants automatically by virtue of being a complainant. Publication bans should be exceptions to the rule of open court, being justified only when there is a demonstrable risk of safety to the complainant or when the case involves minors.

Of course, there is also the potential solution of offering both parties or only the defendant anonymity. Christie Blatchford, with her extensive experience covering sexual assault trials, has explored the idea herself when criticized for using the names of two accused men prior to a verdict. Blatchford thought that “it’s the allegations that do the soiling” of the reputations of those accused rather than the reporting of those allegations. However, she concluded that in hindsight she would have preferred not to have published their names.

The question of whether the accused has a right to have their identity concealed is emotionally charged. Given the current social predisposition to #BelieveWomen, few journalists hesitate to publish the name of anyone accused of sexual assault. In the court of public opinion there is no presumption of innocence. Numerous men and their families are living with the consequences of wrongful convictions and even those acquitted have no guarantee of normalcy in the aftermath of their trial. When the public is being coached to believe women unconditionally, how can they be expected to accept a “not guilty” verdict?

Because of the immense pressure put on judges to believe all complainants and convict, it is especially important right now to increase visibility for falsely accused people to ensure they received a fair trial. This is not an easy conclusion to accept because innocent people have been subjected to immense humiliation and hardship. Sexual assault trials put on display the sexual lives of both parties, with the court often hearing details of the accused’s sexual history, preferences, and sexual performance. With compassion for those who have had their careers, relationships, families, self-esteem, and lives destroyed by false allegations, anonymity for the accused remains a bad idea.

Advocacy for the falsely accused is dependant on the courts remaining open. The accused will benefit the least from a publication ban on anyone’s identity, their own or their accuser’s, because this will prevent journalists or advocates from informing the public on how the law is being applied in their case. It is true that there is bias against the accused throughout the criminal justice process, but the openness of the courts is what allows us to know which judges are affected by this bias. The cost to the accused of having their name plastered all over the media is high, but the cost of having their trial operate in a star chamber would be even more devastating.

What we are seeing now, with the outrage of third-party reporting of sexual assault, is the result of anonymity for the complainant being taken for granted as a necessity. Third-party reporting is also growing in popularity because advocates for sexual assault victims are insisting that the justice system is not functioning properly. They are demanding an alternative which better serves the victim. Many advocates for the falsely accused also lack faith in the legal system, albeit for the opposite concern. They believe that the process is increasingly designed to serve the complainant at every stage. The best way to establish public faith in the criminal justice system is for the courts to be open and all the relevant facts accessible. Ultimately, despite the court’s inherent invasiveness, this is the best way to ensure the fairness of the process as well. Freedom of the press and the open court principle, as a general rule, are justifiable constraints on the privacy of the accused and the accuser.

The more relevant facts that the public has access to, the more responsibly they can engage in dialogue about each case. Without names to identify each case, the public will have no emotional connection to a case when an injustice takes place. Miscarriages of justice only generate the necessary outrage when there is a name and face attached to the story. The public cannot have confidence in, or meaningful engagement with, a system that withholds information about criminal court proceedings. With precedent-setting judgements, there needs to be transparency so that the public can understand and evaluate how well the court decisions conform to an acceptable interpretation of justice.

In the UK, Liam Allan, Isaac Itiary, Oliver Mears, Samson Makele and a growing list of other men had charges dropped after evidence of innocence had been mishandled by police. The public demand for an investigation would not have been possible if the men were just anonymous cases. Because their names and stories were published, 47 other innocent men now have their freedom. Though nothing can erase the trauma endured by the falsely accused, their names and their stories are essential to protect the rights of the accused and make meaningful change to a broken system.

Featured image taken from the interrogation scene in Terry Gilliam’s 1985 Film Brazil