Victim Privacy and the Open Court Principle

Chapter Five: Perspectives

Introduction

Debate about sexual offences has, in recent years, been focused on the myths and stereotypes surrounding the crime of rape. It is a debate which, to some extent, has been polarized between those who dispute the existence or persistence of such perceptions and beliefs, on one side, and those who claim that the criminal justice system is tainted by them, on the other. As Chapter Three explained, the Supreme Court of Canada has concluded that these perceptions are part of the dynamics which have defined sexual assault proceedings in the past. Those dynamics can result in an ugly contest between the complainant and accused which re-victimizes those against whom crimes have been committed. In passing, it can be noted that rape myths extend in many directions, as the sorry history of race discrimination attests. Not so long ago and perhaps to this day, discriminatory beliefs about the sexual appetites of black men and their lust for white women resulted in lynchings, wrongful convictions, and many other injustices in the United States. [ccclv]

It is not difficult to see how myths and stereotypes that promote prejudicial beliefs at the expense of truth can undermine criminal justice. The system is not functioning when offences are not reported or, if reported, are not prosecuted as a result of such beliefs. Unpunished crimes, in turn, compromise the community's interest in law enforcement, and victims pay a personal price when their bodily integrity is violated with impunity. Society's need of retribution and denunciation is denied, and the victim's right to vindicate and restore her sexual integrity is sacrificed.

But nor does the process function smoothly when complaints are prosecuted; a conviction cannot be secured without the victim's decision to testify and thereby forego her privacy as well, in many cases, as her dignity. Latterly, procedures and rules of evidence too often enabled the accused to savage a victim's character and expose her past sexual activity to excuse a non-consensual contact. Rules of evidence, which permitted what are now recognized as irrelevant questions, were experienced by victims as humiliating and insulting. The consequences for complainant privacy and dignity were discussed in the context of the Charter jurisprudence, in Chapter Three above.

Not only did such questions in and of themselves constitute an invasion of privacy, they rebounded back to the open court principle and the problem that sexual offences are chronically under reported. For complainants, the travails of submitting to cross-examination were surely compounded by an open court principle which treated sexual assault victims the same way as other victims of crime. Newspapers and broadcasters were free to publish the private and intimate details of a named complainant's sexual encounter with the accused. And, before restrictions were placed on this evidence, details of the victim's sex life with others could also be freely reported because it was disclosed in open court. In the circumstances, it is understandable that the victims of these crimes were reluctant to trust the criminal justice system.

The reforms of recent years have done much to ameliorate the status of complainants in sexual assault proceedings. Initiatives in judicial and legislative forums have been aimed at rectifying the perceptions and beliefs that disadvantaged this class of crime victims. As a result, debate about the relative rights of complainants and the accused is, in Canada, quiet for the time being. Though proponents of the accused's rights resist the suggestion that the defendant and his victim are "equal" under the Charter , statute law and judicial precedent have made it clear that there is no "hierarchy of entitlement" between the accused and his victim. Yet competing interests remain strong; the Supreme Court of Canada has indicated, at the same time, that victim privacy cannot be promoted, absolutely or disproportionately, at the expense of the accused's right of full answer and defence. [ccclvi] By the same token, nor does victim privacy stand above the open court principle. Thus, the Supreme Court accepts that victim privacy can be protected, and also places access and accountability at the core of s.2(b)'s underlying values. [ccclvii]

Another element of the myths and stereotypes which surround the crime of rape concerns the way sexual offences are reported by the media and how the public, in turn, perceives the complainant [ccclviii] . As explained by Helen Benedict, "[s]ex crimes have a unique ability to touch upon the public's deep-seated beliefs about sex roles," [ccclix] and the press plays a role in "establishing or reinforcing those attitudes." [ccclx] In her 1992 book, Virgin or Vamp: How the Press Covers Sex Crimes , the author identifies a number of rape myths which in her view are "still alive and well." [ccclxi] She maintains that these myths condition the way the press reports sexual offences, and the way the public responds to a complainant's allegation of rape. Benedict suggests that sex crime victims are squeezed into one of two images: "she is either pure and innocent, a true victim attacked by monsters - [a virgin] or she is a wanton female who provoked the assailant with her sexuality - [a vamp]." [ccclxii] In light of how "deeply terrible a crime sexual assault is", this kind of stereotyping is particularly unfair. Benedict describes her understanding of rape in these terms:

I learned how it destroys the fundamental sense of autonomy and privacy of the victim - one's body is used as an object, one's humanity degraded; how it introduces trauma and distrust between the victim and those close to her, often destroying marriages and families; and how little the police, the press and the public at large understand or even sympathize with these troubles. I learned how rape victims become trapped in a cycle of injustice: having fallen victim to a violent crime through no fault of their own, they are blamed for it, sometimes mocked for it by neighbors, friends, family, and the law. I also learned that, even after two decades of feminist attempts to educate the public about rape, women are still screamed at or run out of town for it, and are still commonly portrayed as promiscuous liars by the press and public… [ccclxiii]

With reforms now in place, it is difficult to know whether sexual offences are traumatic because the attack is sexual in nature, because the myths and stereotypes aggravate and worsen the victim's trauma, or because the attack and its mythology have not yet and perhaps cannot be disentangled. Benedict predicts that "[a]s long as people have any sense of privacy about sexual acts and the human body, rape will [] carry a stigma", and this is "not necessarily a stigma that blames the victim for what happened to her", but a stigma "that links her name irrevocably with an act of intimate humiliation." [ccclxiv]

For purposes of this study, it is important to identify the rationales which support victim privacy in cases of sexual assault. Specifically, in relation to the open court principle, the question is whether exceptions to access and publicity are necessary to overcome the mythology and negative history of law enforcement in this area, or whether sexual offences always have been, and always will be different. The first view would regard exceptions to open court as a temporary measure to protect the privacy of complainants who are caught in a criminal justice system and media culture which has not yet eliminated prejudicial attitudes about sexual offences. The other perspective would treat victim privacy as a permanent exception to the open court principle in sexual assault proceedings. That view is grounded in the belief that a sexual offence should be treated differently because the crime necessarily commits a violation of its victim that is distinctive.

In addressing those points of view, it is important to contextualize the problem of myths and stereotypes and the open court principle. Chapter Three explained how discriminatory beliefs entered and pervaded the proceedings, from the investigation through to the rules of evidence which applied at trial, and in doing so treated sexual assault complainants unfairly. Despite having been addressed by reforms, these patterns of unfairness are systemic and will be slow to disappear. By contrast, the open court principle neither endorses nor incorporates the myths and stereotypes which infused other aspects of sexual assault proceedings in the past. The presumption in favour of access and publicity does not treat sexual assault victims differently or unfairly; rather, it assumes that the same principles which apply to other victims of crime should also apply to those who suffer a sexual assault.

Yet there is a qualification to that; victim anonymity is protected by s.486(3) of the Criminal Code , as an exception to openness which is justifiable because of the link between victim identification and under reporting. As well, but only in circumstances where the evidence supports the order, s.486(1) permits a judge to close part or all of a proceeding. Moreover, even if the open court principle is not based on any myths or stereotypes, according to Benedict, media reports continue to trade on a variety of prejudices about sexual offences. From that perspective, exceptions to open court place a check on the media's tendency to reinforce or even establish myths and stereotypes about the victims of sexual offences. On that view, sexual assault prosecutions should be regarded as seamless, in the sense that the privacy implications of the open court principle cannot be separated from the privacy implications of the confrontation between the victim and the accused.

It is beyond the scope of this Chapter, and the study, to resolve the complex dynamics that are identified above. Instead, this Chapter provides a discussion of the rationales which enter into the equation when open court and privacy are in conflict. It is divided into two parts which correspond to the two major open court issues analyzed in Chapter Two: publicity versus publication bans on victim identity; and access to proceedings versus orders excluding the public from the court room or the evidence. Accordingly, the first section below explores victim anonymity and, in doing so, draws on the extensive American literature on this issue.

The second part of the Chapter examines the open court questions that arose in the Homolka-Bernardo proceedings, with two objectives in mind. One is to consider when and for what reasons it may be permissible to exclude the public from the courtroom, or deny it access to critical elements of the evidence. A second is to explore the concept of a victim. It is trite that the commission of a single offence can create many victims, and it is well established that the victims of crime have not been well treated by the criminal justice system in the past. In such circumstances, granting the victims of crime new opportunities to participate in the criminal process unavoidably challenges the traditional concept of a single victim. The question is whether "secondary" victims should also be recognized and, if so, in what ways or for which purposes. Though the Charter has conferred some status on third parties, such initiatives are controversial because they alter the concept of a criminal trial as an adversarial contest between two parties: the state and the accused.

The discussion of these difficult issues is followed by a brief conclusion.