Victim Privacy and the Open Court Principle

Chapter Five: Perspectives (cont'd)

Victim anonymity

Unlike the evidence cases on defence access to private information, victim anonymity in sexual proceedings has generated little discussion in Canada. The Supreme Court of Canada's decision to uphold the Criminal Code 's mandatory publication ban on victim identity was not particularly controversial, and the complainant's right to remain anonymous has not since been challenged. At the same time, Chapter Two noted Howland C.J.O.'s reasons for concluding that identity should not automatically be protected. In his view, disclosure in at least some cases might bring fresh evidence or witnesses to the fore. That Chapter also traced the evolution of litigant privacy in the justice system, from a low point in Scott v. Scott , to the present, including the discretion under s.486(1) to close all or part of the proceedings to protect victim privacy.

Reforms to protect victim privacy, along with more sweeping modifications to the law of sexual offences, have been in place for many years now. At this point in time, it might be helpful to know whether these changes have favourably influenced rates of reporting, prosecution, and conviction for sexual offences. In the absence of data, the debate on anonymity takes the form of principled arguments on each side of the question.

An initial point, and an important one, which was flagged in discussion of the American jurisprudence, is whether the open court principle is compromised when a victim's identity is withheld from the public. On that point, it is not obvious that access to information, or the transparency and accountability of the criminal justice system, require the victims of crime to be publicly identified. Presumably, what matters is the offence that has been committed, and the guilt or innocence of the accused that is at stake, and not the name or particulars of the victim. To the extent such particulars are relevant to the fairness or credibility of the trial, those details remain available through the public's access to the courtroom and to reports of the proceedings in the print and broadcast press. To put it another way, it is reasonably arguable that excising the victim's identity constitutes a minimal trivial derogation from the requirement of openness.

Thus Rehnquist J., who has been the Chief Justice of the United States for many years, claimed in Smith v. Daily Publishing Co. that publishing a juvenile's name was unrelated to the watchdog role the press plays in monitoring the criminal justice system. [ccclxv] Given its freedom to describe the details of the offence and inform the community of the proceedings against the juvenile, the prohibition on identity was, in his view, "a minimal interference with freedom of the press." [ccclxvi] Rehnquist J.'s position on anonymity was based on his concerns for a young offender's rehabilitation, as well as on the existence of a judicial discretion to permit publication.

Likewise, White J. dissented in The Florida Star v. B.J.F. , on the ground that there is "no public interest in publishing the names, addresses, and phone numbers of persons who are the victims of crime." [ccclxvii] In his view, it was "not too much to ask the press, in instances such as this, to respect simple standards of decency and refrain from publishing a victim's name, address, and/or phone number." [ccclxviii] As far as he was concerned, if the First Amendment prohibited a private person from recovering for publication of the fact that she was raped, there might not be any facts which were too private for publication. [ccclxix] The majority opinion provided two answers to Mr. Justice White's concerns. First, Marshall J. claimed that the article generally , as opposed to the specific identity contained within it, involved a matter of paramount public interest. [ccclxx] Second, his opinion did not rule out the possibility that civil sanctions for publication might be necessary to serve the interests at stake. In the circumstances, he concluded that imposing liability on the Florida Star was "too precipitous" a means to protect a victim's safety and privacy, or encourage other victims to come forward without fear of exposure. [ccclxxi]

If the majority's answers are not entirely persuasive, the question whether the name or identity of a person is important remains unanswered. It is not self evident that withholding victim identity would undercut the press function as watchdog, or that the name of a crime victim matters to the public. In addressing that question, NBC News President Michael Gartner explained, that "we are in the business of disseminating news", and that "[n]ames and facts are news" which "add credibility to stories and give viewers or readers information they need to understand issues." [ccclxxii] On its face, that assertion is difficult to prove or disprove; though undoubtedly true in some cases, it hardly supports an absolute right to name victims. A more realistic view is that of Howland C.J.O., who found in Canadian Newspapers that identity might make a difference in some cases, when disclosure of a victim's name prompts others to come forward.

On a different point, if the public does not need to know the identity of a sexual assault victim, it is questionable whether it is essential to know the identities of any victims of any crimes. This recalls the observation Brennan J. made in Globe Newspaper , in explaining why it was inappropriate to close the court room for the young victims of sexual offences, and not for other victims. There, he commented that the victims of sex crimes are not the only ones who would be more likely to come forward when guaranteed a closed hearing. The dilemma in drawing distinctions between victims is that none are voluntary participants in the criminal justice system; they are part of the process through force of circumstance rather than choice. Those who suffer a sexual assault are not alone in this, and if victim privacy is taken seriously, an anonymity order should be available to any victim who seeks it. That approach is unacceptable, however, because it would transform an exception from the open court principle into a rule of anonymity. Such an expanded concept of victim privacy, which is still a newcomer in the criminal justice system, would raise the concerns voiced by Lord Shaw in Scott v. Scott and echoed, as well, by Wilson J. in Edmonton Journal v. Alberta (AG) . [ccclxxiii]

A further point, which is often raised in the American literature, concerns fairness to the accused. Some claim that protecting the identity of the complainant infers that the unnamed person was indeed a victim and undercuts the presumption that the defendant is innocent. For instance, American criminal defence lawyer Alan Dershowitz expressed that view in these terms:

People who have gone to the police and publicly invoked the criminal process and accused somebody of a serious crime such as rape must be identified… In this country there is no such thing and there should not be such a thing as anonymous accusation. If your name is in court it is a logical extension that it should be printed in the media. How can you publish the name of the presumptively innocent accused but not the name of the accuser? [ccclxxiv]

Michael Gartner, President of NBC News during the William Kennedy Smith and Central Park jogger incidents, agreed that fairness as between the suspect and the accuser is an issue, yet his view was that the decision whether to name victims is an editorial question and should be made on a case to case basis. [ccclxxv] It is sometimes argued that the identity of the defendant should also be protected, at least until trial proceedings are concluded. Doing so would effectively create an anonymous trial process, though, and that would be anathema to the values of transparency and accountability that have been jealously guarded over the years by the open court principle.

The main issue between those who support the naming of victims and those who support anonymity is stigma, and how it can or should be addressed in the context of sexual assault. One view is that sexual offences should be normalized, and from that perspective, special protocols simply perpetuate the stigma and shame of being a rape victim. Nadine Strossen maintains, for instance, that, "if we are ever to get beyond the situation where rape is seen as stigmatizing, where the victim is seen as 'damaged goods', then we have to stop mythologizing it and treating it as some special kind of crime." [ccclxxvi] She and others contend that mandatory anonymity implies and encourages the view that rape is disgraceful. Likewise, a former President of the National Organization of Women stated that prohibiting publication "merely establishes the victim as an outcast"; she urged others to " pull off the veil of shame. Print the name ." [ccclxxvii] Though it may be less credible, given that its source has an interest in identifying victims, Michael Gartner of the NBC News argues that, "by not naming rape victims, we are participating in a conspiracy of silence which does a disservice to the public by reinforcing the idea that there is something despicable about rape." [ccclxxviii] He added that "[r]ape is a despicable crime of violence, and rapists are deplorable people", but rape victims, on the other hand, are "blameless." [ccclxxix] His view of the press role is "to inform the public, and one way of informing the public is to destroy incorrect impressions and stereotypes." [ccclxxx]

Meanwhile, the arguments in favour of anonymity are as forcefully advanced. One such argument is that it is not the victim's burden to educate the public and de-stigmatize the offence of rape by exposing her personal circumstances. A person who has already suffered the ordeal of rape should not bear responsibility for changing prejudicial views about rape and its victims:

[W]hy must the victim, who has already suffered from the ordeal of rape, be forced to bear the responsibility of educating society and changing its prejudicial view toward rape and its victims" These negative views have been developed and reinforced by many segments of our society - parents, teachers, newspaper and television reporters, film-makers, politicians, sports heroes, and other role models. The seeds of change must come from these same individuals if society is to make any meaningful progress in changing its attitude about rape victims. [ccclxxxi]

Benedict echoes this view in the assertion that to expose a victim to the humiliation of being identified without her consent is "nothing short of punitive." [ccclxxxii] She considers that the media covers rape "too irresponsibly" to be able to de-stigmatize the crime merely by naming victims, and adds that until rape coverage is reformed as a whole, "naming victims will only further humiliate, expose, and endanger them." [ccclxxxiii]

In any case, it is noted that revealing the victim's identity focuses attention on the victim, and not on those who may have prejudicial views. The stigma surrounding these offences renders its victims especially vulnerable and creates distinctive challenges for them in the healing process. The public disclosure of a victim's identity could disrupt her healing process, and although commentators argue that stigma is removed by routinely revealing the names of all victims, those who are caught in the transition period would be unduly harmed while the stigma still exists. [ccclxxxiv]

This section closes with two observations about the question of victim anonymity in the American literature. As the discussion has shown, the debate tends to be conducted on an all or nothing basis. For instance, Michael Gartner explained that, "producers, editors, and news directors should make editorial decisions, rather than lawyers or legislatures." [ccclxxxv] To that he added, "I oppose preventing news organizations from disclosing the names of rape victims who prefer to remain anonymous." [ccclxxxvi] And, on a point of equality, he added that, "we do not give newsmakers in any other category of news the option of being named or not being named." [ccclxxxvii] From his perspective, the state cannot dictate newsroom decisions about what is or is not newsworthy. On the other side, women's organizations and those who seek to reform the law of rape insist that the victim's identity should never be disclosed without her consent.

The first observation, then, is that the polarization between sides that characterizes debate at the level of constitutional principle is not reflected in current practice. Whether or not a state law prohibits publication of a rape victim's name, the American practice is for the media not to reveal her identity. Though a statutory ban has not yet been upheld under the First Amendment, the media has voluntarily adopted the principle of anonymity. In doing so, it is unclear whether the press has conceded that victim identity is either irrelevant or marginally relevant to the accountability rationale, or has concluded that the privacy of the victim outweighs the public's need to know her identity.

Second, those who are opposed to disclosure are offended that the victim's name is revealed without her permission. Put another way, whether to be known to the public as a victim of rape should be a matter of choice. In that regard, Nancy Ziegenmeyer is an example. Ziegenmeyer is an American woman who chose to come forward and reveal the explicit details of her rape. She has been praised for her courage in doing so, and the story of her violation earned its author a Pulitzer Prize. Ziegenmeyer maintains, however, that any decision to speak out should be made by the victim and only when she has healed enough. Her own experience led her to offer the following advice:

I would encourage any rape victim to come forward who has gone through enough counselling and has a support system and she thinks it is right for her. No one should dictate to crime victims that they should speak out. It must be their choice. [ccclxxxviii]

To conclude, reference should be made to R. v. Adams , a decision of the Supreme Court of Canada on the question whether, when and at whose instance a sexual assault publication ban can be lifted. [ccclxxxix] In that case, the ban was imposed at trial upon the request of the Crown, and not the complainant. When the trial ended in an acquittal of charges against the accused, the judge revoked the publication order, citing his findings that the complainant "was a prostitute and a liar." [cccxc] In restoring the order, Mr. Justice Sopinka of the Supreme Court found that the language of s.486(4) did not expressly authorize the revocation of such orders. Nor was he prepared to imply such a power in the statutory provision, given the purpose of the ban, which is to provide the complainant a permanent guarantee of anonymity. In his view, a revocable ban, like the discretionary ban at issue in Canadian Newspapers v. Canada (AG) , "would fail to provide the certainty that is necessary to encourage victims to come forward." [cccxci]

Nor did the trial judge have an inherent power to revoke the order, because it was mandatory at the request of the Crown, and the Crown had neither withdrawn its application nor consented to the revocation of the order. In any case, Sopinka J. held that even if the Crown consented, the judge still would have no power to revoke the order if the complainant did not. Such an order can only be lifted when both the Crown and complainant consent.

In Canada, then, the complainant in sexual assault proceedings controls the disclosure of her identity, during the process and following its completion as well. Though the victims of these crimes are free to identify themselves to the public and speak to their experiences, few, if any, have chosen to do so thus far.

Access to proceedings

Despite its entrenchment in the s.2(b) jurisprudence, the open court principle remains vulnerable. The shock value of violent crime ensures that exceptions to the rule will be sought whenever the circumstances are frightening enough to threaten competing values such as fair trial and victim privacy. At present, decisions will be made on a case-to-case basis, under the analytical frameworks established in Dagenais v. C.B.C , C.B.C. v. New Brunswick (Re: R. v. Carson) , and R. v. Mentuck and R. v. O.N.E. [cccxcii] Generally speaking, exclusion orders constitute a more serious infringement of the open court principle than publication bans; perhaps for that reason C.B.C. (Re: R. v. Carson) emphasized the need for a sufficient evidentiary foundation to justify closing all or part of a hearing. In addition, closure orders unavoidably deny access to the information which is imparted during proceedings and that is problematic because once access is denied that part of the hearing is effectively lost to the public.

Under s.486(1) of the Criminal Code , the public can be excluded, to protect the privacy of victims or witnesses, for part or all of a proceeding. That question arose with particular poignancy in the course of the Homolka-Bernardo trials. There, the survivors of the French and Mahaffy victims fought to keep graphic videotapes of sex torture out of the public domain. Though not to sympathize with their cause might seem heartless, on a point of principle the Homolka-Bernardo crimes raised as yet unanswered concerns about the accountability of the criminal justice system. To this day, the public is sceptical of the deal the Crown "cut" with Ms Homolka, and doubts whether she received just punishment for the crimes she committed. At the same time, the privacy and dignity interests of the victims and their survivors could scarcely have been more compelling. That is why the open court issues at stake in the Homolka and Bernardo trials are so pertinent here; in each, the competing concerns under discussion in this Report were at an apex.

The open court principle was challenged three times in the course of separate trials for the defendants Homolka and Bernardo. First of all, at the hearing to consider Ms Homolka's plea bargain and sentence, Kovacs J. excluded the public and foreign press from the courtroom, and imposed a wide-ranging publication ban on the domestic press. [cccxciii] Second, as the date for Mr. Bernardo's trial neared, the families of the French and Mahaffy victims applied for orders excluding the public during those parts of the proceedings in which the videotapes would be shown or discussed. [cccxciv] Third and finally, after the Bernardo trial and appeals were concluded, the families applied again for orders to destroy the videotape evidence, and that task was carried out late in 2001. [cccxcv]

The elemental facts are well known and require little attention. [cccxcvi] Karla Homolka and Paul Bernardo were lovers who then married and carried out a series of sexual offences which they committed, together, against at least four victims. Two of the four, Leslie Mahaffy and Kristen French, were murdered and a third, Ms Homolka's sister Tammy, died accidentally following sexual assaults that occurred while she was unconscious. For some time the police did not regard Tammy Homolka's death as suspicious, were unaware of Jane Doe, the surviving victim, and were without leads in the French and Mahaffy murders. The investigation broke when Karla Homolka presented herself to the police as a victim of spousal assault in January, 1993. Once she implicated her spouse, Bernardo was arrested. Charges of manslaughter in the deaths of French and Mahaffy were brought against Ms Homolka on May 18, 1993, and the next day murder charges, among others, were laid against Mr. Bernardo.

At the time of the Homolka trial, three features of the case worried and concerned the public. First, little was known about the sexual captivity and offences the victims endured before being murdered, except that their treatment was rumoured to be sadistic, horrific, and unimaginable. Second, little was likewise known about the respective roles Homolka and Bernardo played in committing those offences and then killing their victims. Third, by the spring of 1993, it was apparent that the Crown's case against Bernardo depended on his spouse's evidence against him. In simple terms, to secure a conviction against him, her story had to be believed. Yet on no view of the facts then known could she be exculpated; by casting her as a victim of his predatory behaviour, her responsibility for the crimes that were committed could be diminished and her credibility as a witness preserved.

Karla Homolka's trial took place on June 28, 1993, some two years before Bernardo's, amid intense public interest. Whether or not they were unprecedented, the trial judge's orders on the open court issues were at least extraordinary. Not only did Kovacs J. impose a near-blanket publication ban on the proceedings, he excluded the public and foreign media from the courtroom. [cccxcvii] As a result, the only details from her trial and sentence hearing that could be reported were the contents of the indictment, whether there was a joint submission as to sentence, whether a conviction was registered but not the plea, the sentence imposed, and a few other unrevealing aspects of the Court's reasons. [cccxcviii] In addition, the non-publication order applied to the transcript of the trial proceedings. [cccxcix] As to access, beyond the families of the accused and the victims and court personnel, only the Canadian press were allowed into the courtroom; the public at large and the foreign press were specifically excluded by order under s.486(1) of the Criminal Code . [cd] Moreover, it was a condition of access, to those admitted to the proceedings, that there be "no publication of the circumstances of the deaths of any persons referred to during the trial." [cdi]

By his own admission, the sensibilities of the victims' families and the community at large played no role in the judge's decision to impose a publication ban and exclude the public from his courtroom. Thus Kovacs J. apologized that he could not act on his "real concern for the psychological well being of the innocent victims." [cdii] He did not consider it permissible, under the existing case law, to create an exception to open court in deference to the privacy or dignity of the families. For the same reason, he did not take the trauma which might be experienced by the community of St. Catherine's into account, should the proceedings be publicized. [cdiii]

Oddly, given the circumstances, the publication ban and exclusion order were granted to protect Bernardo's right to a fair trial at some later date. On the strength of Nova Scotia v. MacIntyre , Kovacs J. found that protecting an accused who is presumed innocent and securing the integrity of the court's process were values of superordinate importance, sufficient to warrant an exception to the open court principle. [cdiv] Yet Bernardo opposed the publication ban and indicated that he was prepared to waive his right to complain that the publicity surrounding the Homolka proceedings would deny him a fair trial. The trial judge refused to treat his insistence that the open court principle be followed as determinative. In his view, permitting Bernardo to waive the fair trial claim would be tragic, if his own trial led, as a result of pre-trial prejudice, to the conviction of an innocent man. And if he was guilty, the harm to society would be "inestimable" if his conviction was flawed because a fair trial had been impossible due to the irreparable publicity surrounding the Homolka trial. [cdv]

After listing some of the extraordinary features of the case, Mr. Justice Kovacs held that the considerations for a fair trial outweighed the right to freedom of the press. [cdvi] The order excluding the public and foreign press was linked to his concerns about publicity. In the circumstances, a publication ban which could not be enforced against the American media would be inadequate to protect the integrity of the process. There remained the risk, should the public be granted entry, that the U.S. press would succeed in gaining access to information about the proceedings and then publish it.