Victim Privacy and the Open Court Principle

Chapter Four: Comparative, transnational and international perspectives

Introduction

This Chapter on comparative, transnational and international perspectives is necessarily impressionistic. Generally, the movement to establish rights for the victims of crime in Canada is reflected in developments around the world. Many countries have endorsed bills of rights, charters, and declarations which are aimed at improving the status of victims. As well, statutory measures have addressed their many grievances, granted them rights of participation in the criminal justice system, and provided access to compensation or restitution. Internationally, the rights of victims have been recognized by the United Nations, and are reflected in the procedures adopted by the International War Crimes Tribunal.

Though privacy is an issue for the victims of crime, it is not a dominant concern. Parallels to the issues and developments canvassed in Chapters Two and Three above can be found, however, in the law relating to sexual offences. Even so, the non-domestic materials on victim privacy and open court are uneven and asymmetrical. Jurisdictions, which differ fundamentally in their conception of criminal justice, approach these issues from distinctive perspectives. For that reason, and also due to gaps in the information, the discussion in this Chapter can only offer a bare survey on the status of victims in legal systems which are either civilian or inquisitorial in nature.

From a comparative perspective, Canada stands between the common law tradition of Britain and other commonwealth countries like Australia and New Zealand, and the constitutional tradition of the United States. Developments in commonwealth jurisdictions which lack a regime of constitutional rights are statutory in nature. To the extent privacy was not recognized, traditionally, as a valid basis for derogating from openness, that position has been altered by legislation. As a result, changes to Canada's Criminal Code , which deal with victim anonymity as well as with privacy and confidentiality in sexual assault proceedings, can be found elsewhere, albeit with local variations.

Meanwhile, by empowering the courts to invalidate statutory provisions and court orders inconsistent with the open court principle, the Charter of Rights and Freedoms changed the way those issues are analyzed. Canada's constitutionalization of that principle renders the American experience instructive; while there are points of difference between the two countries, there are similarities, too. For instance, parallels to Charter guarantees are found in the First Amendment to the U.S. Constitution, which guarantees freedom of the press, and the Sixth Amendment, which protects a public trial. [cclxxi] Much like the Charter , the American Bill of Rights fails to include any right of privacy. At the same time, privacy interests have been granted constitutional protection. Even so, and in deference to the First Amendment and the principle of accountability, the U.S. jurisprudence has struck a different balance, one which is reluctant to permit exceptions to the open court that would protect the privacy of victims. The question the American jurisprudence raises is whether the Charter 's interpretation will evolve in that direction and adopt an uncompromising commitment to open court; otherwise, the Supreme Court of Canada might continue to treat victim privacy as the co-equal of other Charter rights, including s.2(b) and its protection of open court.

The discussion begins by outlining key points of comparison between common law and non-common law systems of criminal justice. It is followed by an account which identifies the general elements of statutory protection for victim privacy in the United Kingdom, Australia, and New Zealand. The Third part of the Chapter explores the relationship between the open court principle and victim privacy under the U.S. Constitution.

1. Non common law jurisdictions

The rise of victims' rights movements in the United States prompted interest in comparative analysis. For these and perhaps other reasons, there is a secondary literature in the English language which describes, reviews and analyzes developments in other legal systems. Yet this literature is more scattershot than systematic, and the information that is drawn from it does not provide a complete picture. Moreover, articles discussing the role of victims in European and socialist systems are only tangentially concerned with privacy issues. As well, it should be noted that civilian and inquisitorial models of criminal justice rest on assumptions and procedures which differ, fundamentally, from those that describe common law jurisdictions.

At least historically, an adversarial conception of the criminal trial treated victims and witnesses, essentially, as outsiders rather than as participants. Vindicating their interests was not the central objective of the trial, and their stake in the outcome was secondary to that of the state and the notional community at large. By contrast, legal systems, which do not subscribe to a bipolar model of criminal justice, are not required, by their underlying assumptions, to minimize the victim's role or exclude that person from the process. In Russia, for example, the victim not only has rights, but actively participates in the criminal trial. This includes the right to question witnesses and the accused. One author reports witnessing trials "where the role of the victim was to frequently interrupt with shouted accusations that had no role in a 'fair' criminal trial." [cclxxii]

At least in Europe, one of three models for victim participation will generally be found. In some jurisdictions, the victim has the right to prosecute the crime or participate, to some degree, in the prosecution. [cclxxiii] One form of participation, which is examined further below, enables the victim to serve as a subsidiary or supporting prosecutor. Otherwise, in countries which include France, the victim may present a civil claim in the course of a criminal proceeding. Such a claim is termed a partie civille or, in jurisdictions with a German legal tradition, may be designated as "adhesive" in nature. [cclxxiv] Finally, some countries treat the victim, effectively, as a witness and no more. [cclxxv] Though it strays from the subject of victim privacy and open court, a brief discussion of Germany's Nebenklage process follows, for it demonstrates a conception of the victim that is quite foreign to common law systems. It is of particular interest that the Nebenklagerin , or subsidiary prosecutor, can invoke the process when the crime which has been committed is a sexual offence.

Roughly, Nebenklagerin means "secondary accuser" or subsidiary prosecutor. [cclxxvi] The procedure known as Nebenklage permits victims to participate through counsel at trial on nearly equal footing with lawyers for the state and the defense. Note, parenthetically, how unprecedented it was, in Chapter Three, for the Supreme Court of Canada to agree that the privacy rights of complainants are on a par with the rights of the accused. The question there arose in the limited context of rules of evidence and the defendant's access to information about the complainant. From that perspective, it is clear that Nebenklage contemplates a more innovative process, in which the victim is an active participant throughout the criminal process, including the investigative stages of proceedings. In this it is interesting that the Federal Constitutional Court rejected a challenge to the institution of the victim-plaintiff, which was raised on the ground that the procedure interfered with the rights of criminal defendants. This result reinforces the point that civilian systems can treat the victim as a party to the proceedings without upsetting the contest mentality that defines criminal justice in common law systems.

The Nebenklagerin is entitled to participate at the investigative stage. Not only is the victim and his or her lawyer granted access to the investigatory files of the police and the prosecutor, the victim's interest in participating in pre-trial proceedings is recognized in other ways. The victim-plaintiff is entitled to be present throughout the trial, and may ask questions at trial through a lawyer. Counsel for the victim is also permitted to make a closing statement, but in doing so generally does not address the question of sentence.

Although Nebenklage has been a part of German criminal procedure since 1877, major reforms expanded the category of crimes in which the victim was entitled to participate as a secondary accuser. As they might not otherwise be prosecuted, Nebenklage was originally aimed at and reserved for more minor offences. Then in 1986 the Victim Protection Law extended the victim's direct participation to crimes considered particularly serious, and victim-plaintiff status is "now seen as an opportunity for injured parties thought to be particularly worthy of protection to pursue justice on their own behalf". [cclxxvii] Significantly, the 1986 legislation added sexual assault to the list of crimes that are eligible for Nebenklage.

Though the procedure is invoked by victims in a relatively small number of cases, the exception to this is sexual offences, where there has been a considerable increase in the percentage of victims who participate as secondary accusers. These victims may seek their own legal representation "due to the highly personal and demeaning nature of the crime, as well as the nature of such trials, where it is not unusual for the character or reputation of the victim to come under attack". [cclxxviii] In the circumstances, the decision to include sexual assault in the reform statute of 1986 was an important recognition of the special problems these victims face in court.

Victim-plaintiffs who invoke this status are visible participants in the trial of the defendant. Though it is their choice to be active in the process, doing so does not mean that their privacy must be sacrificed. Whether as victim or as victim-plaintiff, the complainant in a sexual assault case may apply to exclude the public during her testimony. The request will normally be granted unless the public's interest in hearing the testimony outweighs the interest of the victim. [cclxxix]

This brief discussion does not offer an evaluation of Nebenklage or other variations on the role and status of the victim in jurisdictions which are not based on the common law assumption of a two party contest between the state and the accused. It does illustrate, however, that victims are granted rights of participation, in varying degrees, in other legal systems. In the common law world, extending rights and powers to the victims of crimes would undoubtedly be resisted on the ground that such changes would upset the balance of the criminal justice system and disadvantage or even create unfairness for the accused. Such concerns are a familiar theme in the American literature. The comparative point here is that the Supreme Court of Canada's recognition of victim privacy in Chapter Three is, alongside Germany's Nebenklage , a modest development. Though the rights of victims have gained a foothold in common law systems, those who are the victims of crime are still regarded as third parties. Changing that status and granting victims a stronger role in the proceedings would require a re-conceptualization of the criminal trial at common law.