Denise Balkissoon is a Toronto writer and editor-in-chief of The Ethnic Aisle. She is on Twitter @Balkissoon.
On Monday, the second of three young men accused of distributing child pornography began his trial in a Halifax court. It's a huge case, involving photos taken of the gang rape of a teenaged girl, who was later harassed incessantly by her peers and eventually took her own life. Despite the photos, no one was ever charged with her assault. The fate of these boys, also teens when the attack occurred, is the only opportunity for any justice.
Last year, widespread outrage at insensitive police handling of the case meant the girl's name was all over the Internet, on both news sites and social media. Once charges were finally laid, the Criminal Code kicked in. To protect her identity and the identities of the accused, publishing the 17-year-old girl's name is now illegal. Even if it's seared in our minds, we're supposed to separate what we knew then from what's happening right now.
This has made coverage of the trials confusing and incomplete. The girl's parents have been using her name all over Twitter and Facebook, their supporters wearing t-shirts emblazoned with it to court. That can't be accurately reported without breaking the publication ban and risking legal sanction. American media, including Slate and the Huffington Post, is doing it anyway, giving outside journalists the chance to tell the story with more nuance than in Canada.
On Monday evening, the Halifax Chronicle-Herald put a story up online using the girl's name and citing this frustration as the reason. "It is difficult for readers to follow a news story when the name associated with it is omitted, and we want to inform Nova Scotians…." read the editor's note, which promised future rape victims would be anonymous.
Meanwhile, in Winnipeg, the parents of 16-year-old Rinelle Harper decided to release her name after their daughter was beaten, raped and left for dead in early November. Their decision seems to have helped police arrest two men for the crime, as well as connect them to another victim. Justin James Hudson, 20, is one of the alleged attackers; the other is a teenager, and so must go unnamed. Again, legacy media has followed the rules while Facebook users haven't. It took me less than ten minutes to find the youth's name in legions of posts showering both of the accused with hatred.
Anonymity isn't the end game. It's a legal tactic meant to prevent one incident from overshadowing the entirety of someone's life. There are three main reasons for publication bans in Canadian trials. The first is to keep eventual jury members unbiased. In adult cases, this type of ban usually covers only pre-trials, not trials, and so doesn't especially affect the right of the public to know how justice is served.
The second reason is to protect sexual assault victims from having their histories and violations dissected in public. It's a provision that victims' rights organizations fought long and hard for, since sexual crimes have often shamed the victim even more than the accused. But lately, in the wake of accusations against Jian Ghomeshi and Bill Cosby, scores of assault survivors across North America have decided it's time to be named.
A deluge of women refusing to wear the stigma of victimhood seems to be forcing results. A number of universities in Canada and the United States have publicly declared an intent to address the disease of sexual violence on their campuses, even standing up to the overwhelming financial and alumni power of fraternities. Here, too, it's the reaction to a breach of anonymity, rather than the breach itself, that matters.
The last goal of legal anonymity, as set out in the Youth Criminal Justice Act, is to give young people a chance to escape the shadow of early mistakes. It's a noble idea – the Canadian Paediatric Society says under-18s don't have the moral, ethical or cognitive ability to conceive of crime the way adults do – and it's rarely worked well in real life. Facebook is only the newest face of the public commons. Accused and accuser have always been hurt the most by whispers and shouts in their own community, and that rapid-fire gossip existed centuries before the Internet.
Perhaps recognizing the grey – and less Googleable – area between official news stories and social media innuendo, Halifax police announced in mid-November that they wouldn't be laying charges in seven mystery "files" that breached the publication ban in the child pornography trials. There's been no statement yet on whether the Chronicle Herald will face charges for its purposeful breach.
The young alleged criminals in Halifax and Winnipeg may never escape the judgment of friends and enemies, but they could appear fresh to future employers if they move out of their hometowns. As for the victim, she's gone forever. Her case will set a legal precedent in the digital age of just how heinous it is to pass around photos of someone else's humiliation, and let us know just what her life meant to the country at large. Let's never forget her name.