Victim Privacy and the Open Court Principle

Chapter Four: Comparative, transnational and international perspectives (cont'd)

Great Britain, Australia, and New Zealand

The overview of common law jurisdictions which follows is more focused on privacy and, in particular, the anonymity of sexual assault victims. Albeit with local variations, protecting the identity of these victims can be described as a widely accepted statutory exception to the open court principle in Great Britain, Australia, and New Zealand. In none of these countries is there a system of constitutional rights analogous to that either of Canada or the United States. For that reason there is little jurisprudence on the question of open court versus victim privacy. The statutory provisions state the law, and although questions of application may arise, the law itself cannot be challenged in court.

As noted in Chapter Two, the open court principle is a common law concept which finds its roots in a long-standing tradition of British justice. Though exceptions to publicity and open courts were recognized at common law, victim privacy was not among them. [cclxxx] Thus in Britain, "where the tabloid newspapers give huge coverage to sexual offences", any woman "could count on the whole country knowing who she was and what had been done to her". [cclxxxi] In due course, this was "too nauseating for even English public taste" [cclxxxii] and in 1976 Parliament passed a law which made it an offence to disclose a rape victim's identity. [cclxxxiii]

Gaps in the law quickly became apparent, however. The statutory ban did not apply until a person had been accused, which meant that the victim could be identified up until her attacker became known. In one case, a newspaper ran a photo of a clergyman's daughter attending church, not long after she had been raped in her father's vicarage by burglars. [cclxxxiv] She could be identified under the then existing provision because the gang of burglars was still at large. The law was soon amended to protect the victim's identity from the time the commission of an offence is reported. [cclxxxv] Second, the ban initially applied only to those who are victims of rape, and has now been amended to include the victims of other offences, such as buggery, indecent assault, and incest. [cclxxxvi]

In addition to the distinctive statutory measures that protect victims of sexual offences, legislation permits the court to prohibit the identification of a child. [cclxxxvii] The victims of other offences are occasionally protected by a judge's discretionary power to forbid the publication of an individual's identity. At common law, the court has a general power to order that a name be withheld; this kind of order is often considered appropriate, for example, in a blackmail case. [cclxxxviii]

More generally, it appears that the advent of victims' rights is relatively recent in Britain. The Victim's Charter , released in 1990, confers no rights or privileges but merely lists the ways in which the criminal justice system "ought" to be sensitive to the victim's position. [cclxxxix] Though there has been "an enormous growth of new policies and provision for victims and witnesses in the U.K.", progress is slow. [ccxc] For example, fear of aggressive, humiliating and irrelevant questioning in court has been cited as the largest single factor in prompting women to withdraw complaints of sexual offences. [ccxci] As of 1997, the conviction rate for rape was in decline, despite s.2 of the Sexual Offences (Amendment) Act , which introduced a rape-shield provision broadly akin to the measure considered by the Supreme Court of Canada in R. v. Seaboyer . [ccxcii]

One of the reasons the British law is perceived to be a failure is that cross-examination on a complainant's sexual history is within the discretion of the judge. In the circumstances, witnesses can never be sure, in advance of trial, whether they will face humiliating and intimate questions about their personal lives. A similar issue was discussed in Chapter Two's analysis of the Criminal Code 's mandatory ban on victim identification. There, Canada's Supreme Court held that a discretionary ban was inadequate to provide victims the protection they sought in deciding whether to report an offence. Likewise, Canada has adopted statutory provisions which severely limit the accused's freedom to question complainants about their past sexual history.

Meanwhile, as occurred elsewhere, concern for the victims of crime rose in Australia too, and inquiries were commissioned to report on their status in the criminal justice process during the 1980s. As a result, all state governments issued declarations or charters of victims' rights. [ccxciii] Parenthetically, it should be noted that, like Canada and the United States, Australia is a federation. Though the federal government has jurisdiction over the criminal law in Canada, it is the reverse both in Australia and the United States, where the states have that authority. Instead of one system of criminal law that is national in scope, these countries have a number of systems which function independently of each other. In any case, without creating entitlements for victims or enforceable duties on others, these "charters" provide guidelines for the treatment of victims. Typically, these instruments state that victims should be treated with courtesy and compassion and with respect for their dignity; that victims should be kept informed, at various stages and about various elements of the process; and that the privacy of victims should be protected. [ccxciv] For instance, the Victims Rights Act of New South Wales provides, as do others, that a victim's residential address and telephone number should not be disclosed unless a court otherwise directs. [ccxcv]

In addition, there are statutes which address the problems of law enforcement of sexual offences. Like Canada, Australia has broadened the scope of sexual assault and debated the question of consent. As well, all states have adopted special rules to limit the cross-examination of victims on their prior sexual history. [ccxcvi] For instance, Queensland's Criminal Law (Sexual Offences) Act not only prohibits evidence of the complainant's reputation and prior sexual history, [ccxcvii] it requires the public to be excluded from the courtroom during the complainant's testimony. [ccxcviii] Likewise, the statute places a mandatory ban on the publication of any information which might identify the complainant, unless the court, "for good and sufficient reasons shown", orders to the contrary. [ccxcix] Interestingly, s.7 of the Act also prohibits the publication of information which would identify the defendant prematurely. [ccc]

New Zealand's response is consistent with developments in Britain and Australia. There, too, statutory measures prohibit the publication of names in specified sexual offences, and permits a ban on the publication of names in certain other circumstances. Otherwise, there is some case law in New Zealand on the question whether and when name suppression is appropriate for an accused. In R. v. Liddell , which is a leading case, the court held that the privacy interests of the offender's family rarely justify an order suppressing disclosure of his identity. [ccci] In considering the statutory powers to prohibit the publication of names, the court said that, "the starting point must always be the importance in a democracy of freedom of speech, open judicial proceedings, and the right of the media to report the latter fairly". [cccii] Citing Edmonton Journal v. Alberta , the court also noted that those principles may be seen in "vigorous - and, to some, even startling - operation in the Supreme Court of Canada…" [ccciii] In the circumstances, the New Zealand appellate court was reluctant to concede too much to the privacy interests of the offender's wife and two children. As the court observed:

But anguish to the innocent family of an offender is an inevitable result of many convictions for serious crime. Only in an extraordinary case could it outweigh, in relation to the reporting of the name of a person convicted of a serious crime, the general principle of open justice and the open reporting of justice. [ccciv]

To summarize, each of Britain, Australia and New Zealand has taken steps, by statutory enactment, to protect the identity of sexual assault victims. In addition, other systemic law enforcement problems in this area have been addressed through modification to the definition of the offence, as well as to the rules of evidence which govern the cross-examination of complainants. In the absence of any constitutional guarantee of expressive or press freedom, the protection of victim identity has been relatively uncontroversial in these countries. By contrast, publication bans are virtually unavailable in the United States, and access to the courts is likewise given strong protection by the U.S. Constitution.

The United States of America

Introduction

As in post- Charter Canada, the resolution of these issues in the United States is governed by constitutional considerations. By way of introduction, a few points of information about U.S. constitutionalism may help to set the discussion in perspective. It is useful to know, for example, that different rules of federalism apply to the systems of criminal justice in Canada and the United States. By virtue of s.91(27), the Constitution Act, 1867 grants Canada's federal government authority over the criminal law and criminal procedure. [cccv] As a result, the Criminal

Code and other criminal law statutes enacted by the federal government apply in all parts of the country.

By contrast, the American Constitution does not grant the U.S. government a similar criminal law power. Under their model of federalism, all powers not expressly delegated to the national government by the Constitution are reserved to the states. The states' plenary authority over all else that is not granted to the national government is referred to, in the American constitutional tradition, as the "police power." To compare, there is one system of criminal justice in Canada, but fifty - plus one - in the United States: one for each of the states, as well as one that is federal in nature. That feature of U.S. federalism makes it cumbersome to review statutory provisions on open court which govern in fifty jurisdictions. Some uniformity on questions of open court and victim privacy is achieved, however, through constitutional interpretation, as state laws which violate the Bill of Rights, including the First Amendment's guarantees of free speech and a free press, are unconstitutional.

Like s.2(b) of Canada's Charter , the First Amendment of the U.S. Constitution guarantees freedom of speech and freedom of the press. [cccvi] Unlike the Charter , though, the American Bill of Rights has no provision like s.1, which permits limits on rights to accommodate democratic values. Though rights are not absolute and are subject to judge-made limits, the First Amendment has been granted strong protection by the U.S. Supreme Court. An example, which affects the open court principle, is the presumption against publication bans, which is deeply entrenched in the American jurisprudence. A ban on the publication of information is a form of prior restraint and, as such, is regarded as a particularly insidious form of censorship. Banning publication halts expressive activity in advance, before it is known whether it will have harmful effects or consequences. Meantime, the Charter case law has not yet adopted a similar presumption against such bans: while some have been invalidated under the Charter , others have been upheld. [cccvii] The discussion below demonstrates how difficult it is to sustain a publication ban under the First Amendment.

In addition, the balancing of values that takes place under the Charter does not occur in the same way under the First Amendment. That is, in part, because the U.S. text has no limitations clause and, in part, because the First Amendment itself is framed in the language of an absolute guarantee. Culturally and historically, it has been considered the first freedom or the "matrix, the indispensable condition of nearly every other form of [freedom]." [cccviii] As important a value as it may be, privacy does not have the same status as freedom of speech or the press. Though it, like its Canadian counterpart, has been granted a measure of recognition in the jurisprudence, it is not explicitly protected by the constitutional text. [cccix] Ironically, a civil right of action for the invasion of privacy exists in all U.S. states, and has generated a considerable tort jurisprudence. In Canada, where the Supreme Court has been sympathetic to victim privacy in criminal proceedings, it is more difficult to bring a civil action for the invasion of privacy. [cccx] Under the Charter , however, our Court has protected the privacy of crime victims and placed the privacy of complainants in sexual assault proceedings on the same plane as the rights of the accused. By contrast, in the United States, the First Amendment has consistently prevailed over privacy on open court issues.

Publicity versus anonymity

In contrast to Canada, where the Supreme Court upheld a mandatory ban on victim identity in Canadian Newspapers v. Canada (A.G.) , the U.S. Supreme Court has favoured the right to publish over an individual's freedom from unwanted publicity. In each of four cases considered below, the American Court held that the press could not be held criminally or civilly responsible for disclosing an individual's identity. Two of the four cases, Oklahoma Publishing Co. v. Oklahoma County District Court , [cccxi] and Smith v. Daily Mail Publishing Co. [cccxii] , concerned the identity of juveniles who were accused of criminal offences; each arose in the context of statutory provisions which regulated the disclosure of a youth's identity. Two others, Cox Broadcasting Corp. v. Cohn , [cccxiii] and The Florida Star v. B.J.F. , [cccxiv] raised the question whether the press could be held civilly liable for disclosing the identity of a rape victim.

Certain principles emerge from this group of cases. First and foremost, the First Amendment protects the press from being punished for publishing truthful information on a question of interest to the public. Under that principle, and assuming that a victim or juvenile offender is correctly identified, the only debating point is whether the information is of interest to the public. Moreover, the press cannot be faulted for publishing information it obtained from the state. If the press cannot be held accountable for disclosing information the state made available, it follows that protecting a victim's privacy is the state's responsibility, and not that of the press. Finally, the state has control of the information and has the power to protect a victim or a juvenile's identity: information is only publicized when the state fails to protect the individual's anonymity. In such circumstances, the victim's remedy should be against the state, and not the press.

The first of the four, Cox Broadcastingv. Cohn , is an influential decision. [cccxv] There, the U.S. Supreme Court held that a television station could not be held civilly liable for broadcasting the name of a rape victim, which the reporter had obtained from the indictments against the accused. The documents were public records and had been made available for inspection in the courtroom. In addressing the competing interests, White J. observed that "the century has experienced a strong tide running in favor of the so-called right of privacy", [cccxvi] but also that the privacy claim confronted the constitutional freedoms of speech and the press. Framed by those considerations, the question was whether the state could impose sanctions for the accurate publication of the name of a rape victim, obtained from records which were made open to public inspection.

Many years before LaForest J. would make similar comments in C.B.C. v. New Brunswick (Re: R. v. Carson) , White J. acknowledged that "[g]reat responsibility is [] placed upon the news media to report fully and accurately the proceedings of government, and official records and documents open to the public are the basic data of governmental operations." [cccxvii] As well, he indicated that, "even the prevailing law of invasion of privacy recognizes that the interests in privacy fade when the information involved already appears on the public record." [cccxviii] Mr. Justice White went on to surmise that the state must have concluded that the public interest was being served by placing the information in the public domain on official court records. Such records "by their very nature are of interest to those concerned with the administration of government, and a public benefit is conferred by the reporting of the true contents of the records by the media." [cccxix] Not only was the press discharging its constitutional function, he concluded, in doing so it conferred a benefit on the public. To encourage a rule that made public records generally available and then forbade their publication would under this analysis make it difficult for the media to inform citizens about the public business. The result would be to invite "timidity and self-censorship" [cccxx] on the part of the press.

Mr. Justice White's opinion in Cox Broadcasting made it clear that, in the American jurisprudence, the conflict is between the press and the state, not the press and the victim. He explained that dynamic in the following terms:

If there are privacy interests to be protected in judicial proceedings, the States must respond by means which avoid public documentation or other exposure of private information. Their political institutions must weigh the interests in privacy with the interests of the public to know and of the press to publish. Once true information is disclosed in public court documents open to public inspection, the press cannot be sanctioned for publishing it. In this instance as in other reliance must rest upon the judgment of those who decide what to publish or to broadcast. [cccxxi]

The next two decisions arose when members of the press published a juvenile offender's identity, contrary to statutory provisions which prohibited disclosure. Although neither addresses the issue of victim privacy, both entrenched the principles that were introduced by Cox Broadcasting . In the first, Oklahoma Publishing Co. v. Oklahoma District Court , the U.S. Supreme Court struck down an order enjoining the press from publishing the name or picture of the defendant. [cccxxii] There, a juvenile's name, which was disclosed during a detention hearing, was published by newspapers, as well as by radio and television stations. Subsequently, at the accused's arraignment hearing, the judge enjoined publication of his name and picture. Although state legislation authorized the order, the U.S. Supreme Court declared it an unconstitutional prior restraint.

In reaching that conclusion, the Court relied on Nebraska Press Assn v. Stuart , which, one year earlier, placed strict limits on the availability of pre-trial publication bans. [cccxxiii] The principle from Nebraska , that information disclosed in a public hearing cannot be the subject of a prior restraint, was directly applicable in Oklahoma Publishing . Cox Broadcasting also applied because the juvenile's name and picture were publicly revealed at the detention hearing, with the full knowledge of the presiding judge, the prosecutor, and the defence counsel. Despite the state's legislation, which required juvenile hearings to be held in private and permitted restrictions on access to records, the U.S. Supreme Court held that " Cox and Nebraska are controlling nonetheless." [cccxxiv] It was a simple matter of applying the rule from Nebraska Press , that once a hearing is public the information disclosed cannot be subject to a prior restraint, and the principle of Cox Broadcasting , that the press cannot be punished for publishing truthful information that is lawfully obtained.

Oklahoma Publishing was followed, within two years, by Smith v. Daily Mail Publishing Co . [cccxxv] On facts which were not entirely dissimilar, the Supreme Court arrived at the same conclusion. Once again, newspapers and radio stations had published the name of a juvenile who was arrested in connection with a shooting. West Virginia legislation prohibited the publication of any juvenile offender's name without the prior approval of the juvenile court. The difference was that in Daily Mail , indictments were returned against members of the press which had violated the prohibition.

The Court found it unnecessary to decide whether the statutory provision was in itself a prior restraint, for "state action to punish the publication of truthful information seldom can satisfy constitutional standards." [cccxxvi] Neither Cox Broadcasting nor Oklahoma Publishing was directly controlling, as in each case the government provided or made possible press access to the information. In Daily Mail , the juvenile's identity was obtained through routine newspaper reporting techniques. Though it recognized the connection between confidentiality and rehabilitation, the U.S. Supreme Court held that the interest was not strong enough to support the imposition of a criminal penalty. [cccxxvii]

Rehnquist J. disagreed with the Court's analysis. In his view, a state's interest in preserving the anonymity of its juvenile offenders far outweighed any minimal interference with freedom of the press that a ban on publication of youths' names entailed. In discussing the right to publish a juvenile's name, he made the following remarks:

The press is free to describe the details of the offense and inform the community of the proceedings against the juvenile. It is difficult to understand how publication of the youth's name is in any way necessary to performance of the press' "watchdog" role . In those rare instances where the press believes it is necessary to publish the juvenile's name [the law] permits the juvenile court judge to allow publication. [That judge], unlike the press, is capable of determining whether publishing the name of the particular young person will have a deleterious effect on his chances for rehabilitation and adjustment to society's norms.[cccxxviii]

A question that is deferred for the moment to Chapter Five, is whether the name of an individual is a relevant piece of information for purposes of the accountability principle, which is so central to the concept of open court. Though he supported anonymity, Mr. Justice Rehnquist agreed in the result because the legislation, in applying only to newspapers and not to the electronic media, was incapable of accomplishing its objective and was therefore constitutionally flawed.

Though the outcome was more controversial than in Cox Broadcasting , the Court held a second time, in The Florida Star v. B.J.F. , that the press could not be held responsible, civilly, for publishing the name of a rape victim. [cccxxix] Unlike the victim in Cox Broadcasting , the plaintiff in The Florida Star was not killed, and suffered some harassment following the publication of her identity. Her name was published in violation of a Florida statute, in contravention of signs posted in the pressroom which made it clear that the names of rape victims are not matters of public record, and in violation of the newspaper's own internal policy. Notwithstanding those damaging facts, the key consideration for a majority of the Court was that the reporter obtained the victim's name from a police report which was placed in the Police Department's press room. While a majority held, in the circumstances, that the paper's right to publish fell within the principle of Cox Broadcasting , three members of the Court dissented on the ground that the earlier decision was "wholly distinguishable" and did not apply.

The question was whether the earlier trilogy of decisions - Cox , Oklahoma Publishing , and the Daily Mail - were inapplicable, both because the information in the other cases had appeared on a "public record", and because the privacy interests there were less profound than in The Florida Star . Given that "press freedom and privacy rights are both 'plainly rooted in the traditions and significant concerns of our society'", and the "sensitivity and significance of the interests" presented in clashes between the two, the majority opinion by Marshall J. emphasized the decision to rely on limited principles that would sweep no more broadly than the case at hand. [cccxxx]

In doing so, the Court synthesized three principles from the trilogy: first, that the government retained ample other means of safeguarding significant interests which might be compromised by publicity, including a rape victim's identity; second, that once the government has made information publicly available, it is not only anomalous to sanction persons other than the source, it is unlikely that a meaningful public interest is served by restricting its further release; and third, that to threaten repercussions against those who relied on "the government's implied representation of the lawfulness of dissemination" would foster "timidity and self-censorship" on the part of an uncertain press. [cccxxxi] Applied to B.J.F.'s circumstances, and despite the "tragic reality of rape", the First Amendment protected the publication of truthful information which was lawfully obtained. To mute the force of the dissent, however, the majority opinion stressed the narrow and limited nature of its ruling:

We do not hold that truthful publication is automatically constitutionally protected, or that there is no zone of personal privacy within which the State may protect the individual from intrusion by the press, or even that a State may never punish publication of the name of a victim of a sexual offense. We hold only that where a newspaper publishes truthful information which is has lawfully obtained, punishment may be lawfully imposed, if at all, only when narrowly tailored to a state interest of the highest order… [cccxxxii]

The dissenting opinion of White J. began with a powerful reminder that "[s]hort of homicide, rape is the 'ultimate violation of self'". [cccxxxiii] In his view, the trilogy cases were "wholly distinguishable"; while the victim's identity in Cox Broadcasting was found by consulting public, judicial records, according to the statute, as well as police and press practice, the information in The Florida Star was private rather than public. As for Oklahoma Publishing and Daily Mail , White J. remarked that "[s]urely the right of those accused of crimes and those who are their victims must differ with respect to privacy concerns." [cccxxxiv]

In disagreeing with the way the majority opinion struck the balance between competing values, he found "a place to draw the line higher on the hillside", a spot which, in his view, was "high enough to protect B.J.F.'s desire for privacy and peace-of-mind in the wake of a horrible personal tragedy." [cccxxxv] In stating that "there is no public interest in publishing the names, addresses, and phone numbers of persons who are the victims of crime ", he agreed with the views expressed by Rehnquist J. in Daily Mail . [cccxxxvi] Likewise, White J. could not understand what public interest would be served in immunizing the press from liability in the rare cases where a state's efforts to protect a victim's privacy had failed. [cccxxxvii]

The principle that the government cannot punish the publication of truthful information that is lawfully obtained is strongly entrenched in the American jurisprudence. In each of these cases, the U.S. Supreme Court faulted the state for allowing the information to become public, and then estopped the state from punishing members of the press, either by criminal or civil means, for then publicizing it. In this, there is a significant difference between the Canadian and American responses to the question of victim privacy in sexual assault proceedings. As Chapter Two demonstrated, publication bans which protect the identity of victims are not only permissible but mandatory under the Criminal Code . In addition, there are different perceptions of what is at stake in the Canadian and American constitutional systems. In the American tradition, publication bans are seen as a conflict between the state and the press, and less emphasis is placed on the relationship between the victim and the press. By contrast, the question in Canada is whether the state can mediate the competing interests of the press and the victims of crime. Not only that, it is not unusual in Canada for information to be made available at trial, on condition that it not be disclosed or published. For instance, it is routine to ban the publication of evidence that is disclosed at the preliminary inquiry. The First Amendment assumes differently, though, that once the state reveals information it cannot subsequently ban its disclosure. Finally, it should be noted that the rationale which the Court adopted in Canadian Newspaper v. Canada (A.G.) , that anonymity was necessary to encourage complainants to come forward, was not before the Court in Cox Broadcasting or The Florida Star . In the two American cases that discussed a rape victim's anonymity, the issue arose through a civil action for invasion of privacy, and not in the course of a criminal trial.

At the same time, two qualifications to the apparent rigidity of the First Amendment's position should be noted. First, the U.S. Supreme Court emphasized that its rulings in these decisions were narrow and did not foreclose limits on publicity to protect the anonymity of victims. The Court inferred that privacy can be protected, providing that the measures taken interfere, to the least extent possible, with the First Amendment. Second, there is an important divergence between principle and practice in the United States. Though the press is free, under governing Supreme Court authority, to publish accurate information which is lawfully obtained, in practice, the press voluntarily declines to publish the names of rape victims in most cases.