By MARK PEARSON Follow @Journlaw
An issues paper from the Tasmania Law Reform Institute – Protecting the Anonymity of Victims of Sexual Crimes – raises so many issues of relevance to my media law and ethics class that I have built a problem-based learning assignment around it.
The inquiry was triggered by coverage in the Hobart Mercury (see picture) in 2010 of prostitution of a 12-year-old girl by her mother and her mother’s male friend.
While the Mercury anonymised the identity of the girl and her mother, it named the accused male and listed several details that might have led readers with some knowledge of the accused or the family to identify the victim.
The barrister appointed as the girl’s representative in her care and protection proceedings, Mr Craig Mackie, wanted the newspaper charged for breach of the legislation prohibiting the identification of a sex crime victim (s194K of the Evidence Act 2001).
But the prosecutor’s office refused to act, arguing the identification was too indirect to breach the provision. Mr Mackie also sits on the Tasmanian Law Reform Institute board, and he referred the matter to that body for its review.
The issues paper covers some of the key topic areas covered in our media law and ethics subject –free expression, open justice, contempt of court, court reporting restrictions and privacy.
As part of our problem-based learning task, some students might file their own submissions before the September 28 deadline, while others will use their research to inform a reflective paper they submit as a class assignment a week later.
I might draw upon some of their research and insights in my personal submission to the inquiry – with due recognition to their efforts.
Media law tragics will find the Institute’s issues paper compelling reading.
On the one hand, it offers in a relatively brief 52 pages an excellent comparison of reporting restrictions in sexual crimes across several jurisdictions including most Australian states and the UK, New Zealand and Canada.
It also summarises the key cases in the field and quotes some of the leading judgments on the principle of open justice.
Yet my own submission will call into question several assumptions and gaps in the Issues Paper, including:
- Evidence of anti-media language and stance, betraying a fundamental assumption that journalists are out to expose sexual assault victims despite there being relatively few cases where they have done so (often accidentally).
- An old world ignorance of the advent of social media, citizen journalism and blogging, which have complicated the 20th century approach to regulating news media coverage of sex crime cases.
- A similar pre-Internet approach to jurisdiction, seemingly working from the premise that publications about such matters are contained within Tasmanian borders.
- Disregard of the fact that the Commonwealth Government is considering major reform proposals on privacy law and media regulation, all of which are relevant to the media’s exploitation and exposure of vulnerable victims of sex crimes.
- Floating an extraordinarily proposition for prior restraint in such matters – that the media be totally banned from covering sexual cases and that a court should review and censor any proposed story about such a case pre-publication.
- Ignoring the fact that free expression has no constitutional guarantee in this country – unlike in all of the foreign jurisdictions used as a yardstick for comparison, each of which features either a constitutional guarantee or one contained in a bill or charter of rights.
A bizarre aspect of the inquiry is that the Law Reform Institute has in fact repeated the sin of the Mercury by itself republishing the name of the accused male offender, his suburb and his relationship to the girl in its own Issues Paper, which appears quite readily in a Google search on the matter.
It is ironic that someone who knew the family and those basic facts might well discover her identity via the Institute’s very own document.
I’ll publish my submission in a future blog.
© Mark Pearson 2012
Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.