When is it Illegal to Talk About Your Own Rape?
Analysis

When is it Illegal to Talk About Your Own Rape?

Publication bans are in place to protect victims and encourage them to come forward with their stories, but sometimes it has the opposite effect

A woman from the Waterloo region has been convicted of breaking a publication ban on a sexual assault case. She was fined $2,000, plus $600 as a surcharge for victim services.

But in this case, she was the victim for whom the publication ban exists to protect. 

She wasn’t sharing this information with the media. She was just trying to share information with her own friends and family. According to an article by Michele Mandel in the Toronto Sun, she provided them with an unredacted court transcript.

The convicted offender found out and complained to police.

A survivor of sexual violence has to go through a lot to get justice. The reporting process and trial are difficult ordeals where they have to relive traumatic experiences.  It is easy to imagine why this woman chose to share information about her trial with her support network at a time when many courtrooms are at reduced capacity or closed altogether during COVID-19.

Farrah Khan, a gender justice advocate who works with sexual assault survivors at Ryerson University does not know the particulars of the case, but feels that the survivor was probably attempting to seek support. “This is validation from an institution that says ‘yes, you were violated’ because the woman alone saying it is never enough.”

“This is really egregious. It feels so disrespectful to the survivor. Why did they [the police and the Crown] proceed with these charges?  Who is it going to help by her being criminalized? Because this is a criminal record for her now,” says Khan.

Canadaland reached out to several advocates, lawyers, a legal scholar, a judge and a former Crown prosecutor to see if there was any recollection of a survivor of sexual violence being charged and it appears to be almost unprecedented.

Professor Elaine Brooks-Craig from the University of Dalhousie specializes in sexual assault legislation. Her book, Putting Trials on Trial, is critical of the Canadian legal system’s approach to sexual assault. Brooks-Craig spoke to Canadaland over email.

“I am not aware of any other cases where a complainant has been prosecuted for breaching a publication ban intended to protect her,” says Brooks-Craig. “The outcome of this case, in which a publication ban that was intended to protect a victim was used against her is perverse.”

There are other examples where survivors chose to speak out without the formality of going to court to lift the ban.

A woman, who we will call Julie because her real name is protected by a court-ordered publication ban, was involved in a high-profile sexual assault trial where Matthew McKnight was convicted of rape and sentenced to eight years in prison for five sexual assaults.

Julie said for herself and many of the women she has spoken too, getting through the trial alone is “hard enough to get through.”

“Oh my god it is already mind blowing how much a victim has to pay out of their own pocket. Like it is absolutely insane. Not to mention how much this has impacted my career. So to hear that above and beyond all of this, they fined this woman even more money. I don’t think I could have dealt with that” says Julie.

When the #MeToo movement created a international discourse on sexual violence and a cultural shift took place that finally allowed many women to tell their own stories.  

A publication ban shouldn’t get in the way of survivors using their voice. The ban is supposed to have the opposite effect.

In 1988, the Supreme Court of Canada affirmed the purpose of a publication ban in a landmark case. The ruling upheld section 442(3) of the Criminal Code, which established a mandatory court order that directs that the identity of a complainant in a sexual assault case can’t be disclosed.

The SCC ruled that this limitation on the freedom of the press to report on matters of public interest was justifiable to protect survivors from the trauma and potential humiliation that they could experience. They further elaborated that the overall objective of such a ban was to encourage victims to come forward about their assault.

There is another case in recent Canadian history where a publication ban prevented a victim’s story from being told. Her name is Rehtaeh Parsons, and her stepfather Glenn Canning has just marked the eight anniversary of her death on Twitter. Parsons was a 17-year-old high school student in Dartmouth, Nova Scotia. Parsons died by suicide after the distribution a picture of an alleged sexual assault from when she was 15. The explicit photo circulated by her peer group shows the girl vomiting out a window as one of the accused boys had sex with her. He was giving the camera a thumbs up. An investigation by the RCMP determined that there was insufficient evidence to lay charges, but the family says that the boys who were accused were not questioned and their phones were not reviewed for evidence.

Because of Parsons’ age, the media was not permitted to share her name. The Halifax Chronicle Herald violated that ban and published Parson’s name and photo on their front page.  

“We’ve decided to publish the name of the victim in this story, despite a court-ordered ban. We believe it’s in the public interest in this unique case, given the widespread recognition of [her] name, and given the good that can come, and has already come, from free public debate over sexual consent and the other elements of her story,” said the Chronicle article. Halifax police investigated the violation of the publication pan, and the story came down, but no charges were laid.

The ultimate decision in sexual assault cases must consider whether they are pursuing justice. Technically speaking, the woman did break the law, but the choice to prosecute her is on the police and the Crown.   

“What happened to this woman would not have occurred if judges were required to make all sexual assault decisions public (instead of issuing oral decisions, which happens frequently),” says Brooks-Craig. Reform is needed to prevent publication bans from being used against survivors. 

“The Criminal Code should be amended to make it easier for complainants to have publication bans lifted, either during or after a sexual assault prosecution has concluded. Any adult complainant who requests the ban be lifted should automatically be granted their request,” says Brooks-Craig. 

Publication bans serve a purpose, but there are legal changes needed to ensure that they are not being used to silence the people they are supposed to protect.

Top photo: stock photography, Canva

 

Correction, Saturday April 4, 8:33 AM. The original post incorrectly spelled Rehtaeh Parsons first name. We regret the error. 

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