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Media and the Criminal Justice System

Introduction

The principle of press freedom and the interests of justice can at times come into conflict with one another. While the media argues that they have a duty to report the news as it happens to the public, it must not interfere with an accused person’s right to a fair trial. The media has often shown insensitivity to victims of crimes as well. The fact remains that the news industry is a business and crime sells. High-profile, violent and unusual news stories interest the public. However, there must be a reasonable balance between the privacy rights of the victims, those of the accused, and the freedom of the media. While the media may have a legal right to print the sensational aspects of a case, it also has a moral and ethical obligation to respect the victims and their pain.

There are two general perspectives to explain the impact that media representations of crimes have on victims. The first is that media reports may lead to re-traumatisation of victims and may impede their recovery by doing so. The other is that media reports provide social recognition for victims and are therefore a positive form of support that may facilitate recovery. Both viewpoints may hold water, but that the potential for re-traumatisation of victims via the media is a very real concern.

The Rights of the Victim and the Rights of the Media

The rights of the press have long been recognized in Canadian law. They are guaranteed in the Charter of Rights and Freedoms. The courts have traditionally upheld this right and have been reluctant to restrict the press in any way. Section 2 of the Charter states:

”Everyone has the following fundamental freedoms…
(b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.”

More recently, however, the rights of the victim are also beginning to be recognized. Some provinces have developed legislation pertaining to victims’ rights and how they should be treated by the justice system. While this legislation does not specifically apply to media personnel, it should act as a guideline as to how victims should be treated when contacted by the media.

The Media and the Victim

The media, whether it is newspaper, radio, or television, has a history of insensitive treatment toward victims. Photos of a victim’s blood on the street, images of body bags, and TV cameras at funerals trying to interview grieving parents are all things that happen too often. Do we really need to see these images? Does hearing the gory details of a brutal murder enhance our understanding of the story or its larger issues? Probably not, yet these are images we are inundated with daily.

While some victims report a favourable experience with the media, other victims describe a painful and draining experience. The sensitivity the victim receives will of course depend on the individual(s) the victim has to deal with. The media can intensify the feelings of violation and the loss of control that many victims feel. Some of the most common complaints from victims concerning media are:

  • interviews at inappropriate times, such as at funerals,
  • footage/photographs of crime scenes,
  • interviewing/photographing child victims,
  • naming the victim and providing access to them,
  • discussion of gruesome details,
  • inappropriate/aggressive questioning,
  • printing information that would negatively impact the victim’s credibility,
  • glorifying the violent act or the offender and,
  • blaming the victim for the crime.

There is no need for any of these things. News reports should print the substantiated facts. Does the public really have the right to know the specific details of a murder victim’s last moments alive? How will this better their understanding of the crime that has been committed?

Victims deserve to have some rights when it comes to contact with the media. While legislators have always left it up to the media to police themselves, many would argue that the media has done little to set guidelines for themselves. In fact, the media has no formal training or policy designed to teach reporters and photographers how to approach victims appropriately. Some of the rights that victims should have available to them during their dealings with the media include the right to:

  • grieve in private,
  • say no to interviews if the victim so wishes,
  • select a spokesperson/advocate to deal with the media,
  • select the time and place for any interviews,
  • request a specific reporter,
  • refuse a specific reporter,
  • release a written statement in lieu of an interview,
  • exclude children from interviews or harassment,
  • refuse to answer any questions or avoid any topic,
  • demand a correction when a mistake is made and,
  • ask that cameras/reporters not attend a funeral or the victim’s home, or show offensive images on television.

None of these rights would interfere with the media’s ability to get the basic facts about a news story. The public and the truth would not suffer due to these rights.

There are several simple things that the media could do to make things easier on victims and their families, such as:

  • present both sides of the story fairly,
  • treat the victim(s) with respect and dignity,
  • avoid gruesome/inappropriate photos,
  • leave the families alone while they are grieving, i.e. funerals,
  • respect their privacy and wishes,
  • do not humiliate or paint the victim in a bad light just to create news,
  • do not glorify/sensationalize violence,
  • leave graphic details out,
  • do not show the victims blood or a body bag.

Fortunately, the criminal justice system has taken steps to ensure the protection of victim’s identity through publication bans. This is particularly true for victims of sexual assault as well as child victims/witnesses. When the criminal justice system places a publication ban on the identity of the victim (or witnesses if they are children), the media are no longer privy to that information and cannot legally publish those details. However, the media can report anything else they want about the victim, as long as it is not protected by the publication ban.

Positive and Negative Media Experiences

Many victims report a less than favourable picture of the treatment they receive from the media after a crime was committed against them or a family member. For example, the news reports have consistently referred to Leslie Mahaffy as the "dismembered" teen victim of Paul Bernardo. Her mother, Debbie Mahaffy, has repeatedly asked reporters to stop referring to her daughter in this manner, but it continues. The families of Clifford Olson’s victims faced constant media scrutiny. Reporters hid in bushes and behind cars just to get a picture. They followed child relatives of the victims to school asking for interviews and pictures. Families sometimes found out the circumstances of their relatives’ murders from news reports.

On the other hand, some victims have had very cathartic experiences with the media. Reporter Tobi Cohen has stated that many times she has found herself talking with victims and looking through photos with them during interviews. She found that the experiences seemed to be helpful and almost therapeutic for these family members in some cases. Additionally, the media can help to get law enforcement officials involved in cases where they may have been otherwise reluctant. For example, when Jennifer Teague went missing early in the morning in September 2005, the police were not concerned and offered little assistance to her family in trying to find her. Fortunately, a mother of one of Jennifer’s friends heard about the lack of assistance her family was receiving and immediately contacted a few friends in the media. By the evening of Friday September 10th, her parents were being interviewed live on the news and the next day a police mobile command center was set up and the official search for Jennifer began. Unfortunately, Jennifer was found 10 days later, she had been murdered.

The Media and the Accused Person

It is also important to recognize that the media impacts those accused of crime, and can even affect whether or not they can receive fair trials. The Canadian Charter of Rights and Freedoms guarantee an accused person’s right to a fair trial. The accused has the right to be presumed innocent and to be tried by an "independent and impartial tribunal." Therefore, those selected for the jury must not have already decided the accused person’s guilt or innocence before they have heard all the evidence at the trial, not the evidence presented in the news. The accused person’s right to a fair trial is one of the few rights that outweigh the freedom of the press and rightly so. The cost of denying a man like Paul Bernardo, whose trail involved a lengthy publication ban, a fair trial could be unacceptable. It could result in a murderer walking away free of punishment because his/her Charter rights were violated. When one compares the idea of letting a murderer go free to kill again and keeping facts from the press and the public, the only answer is to issue a publication ban. It is not just an issue of the rights of the accused, it is an issue of public protection.

Publication bans are quite rare and are only used when absolutely necessary, but have been used increasingly since the adoption of the Charter. The right of the public to know how the justice system works has long been a part of the Canadian system of justice, which is why publication bans do not happen regularly. The Canadian justice system is supposed to be based on public accountability and one of the ways that the public receives information regarding the justice system is through the media. Justice must not only be done, it must be seen to be done, and thus trials in Canada are open to the public and the media. This right cannot override the accused person’s right to a fair trial though, and sometimes publication bans are necessary to ensure that only guilty people are found guilty of the crimes they are accused of.

Crime in the News

One reason that is almost always cited for the inclusion of crime details and personal information (either positive or negative) about the victim or offender is that it gives the story newsworthiness. Media outlets include the graphic details of a crime because they add “sensation” to the story and therefore make the story more likely to sell. For example, when a child is the victim of a crime, the story automatically becomes more newsworthy because children are not as likely as young adults to be victimized, and the emotional reaction leads to more interest for news. When a crime is particularly heinous or brutal, or if there were multiple victims, the media is more likely to report it. Unfortunately, because these types of crimes are more likely to be published, society’s view of crime becomes skewed. The most reported crimes tend in fact to be the less common types. This is very concerning because people believe that crimes rates are higher and more violent than they actually are, giving the public a sense of disorder. By reporting most often on the most violent of crimes the media does “sell” their stories but they also lead the public to believe that they have a higher risk of being victimized than reality.

The press is prohibited from reporting the details of some cases, particularly the names of child victims and witnesses and adult sexual assault victims. This is done to protect the victims. If the offender’s identify would lead to the identification of the victim (i.e. father-daughter incest), the offender’s name may not be published either. Publication bans have both positive and negative effects, particularly for sexual assault victims, no matter how well intended they are. For example, it is quite possible that the publication of sexual assault victims’ names could discourage other victims from coming forward out of fear of being identified. However, some argue that keeping the names of the victims a secret only adds to the shame the victim experiences, and that publishing their names would show the public that sexual assault victims have nothing to hide. In fact, many sexual assault victims want their names published. While Canadian judges do have the power to order a ban on the publication of the identities of sexual assault victims and children victims and witnesses, the choice should really belong to the victim. Many victims will not want to be identified, but others will choose to be. If a victim wishes to be identified, that should be an option.

Victim Blame

Sometimes, the details that are reported about a crime, the offender, and the victim seem to infer that the victim was in some way responsible for their own victimization. Sexual assault is a crime for which the victim may be perceived as guilty as the offender. One study (Costa & Anastasio, 2004) found that they way the media reports on crime affects the reader’s feelings of empathy or blame towards the victim. These researchers state that reporting details about what a victim was wearing or their height and weight trivializes their victimization and implies that the victim had in some way instigated the crime against them. Mentioning that a woman had endured years of abuse by her husband prior to him murdering her prompts blame of the victim because she failed to leave the abusive situation earlier.

Conclusion

Freedom of expression is a very important right. It provides Canadians with the knowledge to see, not only if the justice system is working, but also how it works. Canadians need this kind of information to ensure that their government is working properly. However, press freedom is a right that must have limits. Some of these limits concern an accused person’s right to a fair trial. The freedom of the press cannot outweigh the right to a fair trial. Recent publication bans illustrate that the courts consider this an important issue. Similarly, when it comes to victims, the courts have the power to order the prohibition of a child victim/witness’s name or a sexual assault victim’s name. Unfortunately, the media can report anything they want outside the limits of the publication ban. Publication bans do not prohibit reporters from taking pictures of body bags or from showing up at funerals. Victims deserve more. The media cannot be trusted to police themselves; guidelines to protect are necessary.

Sources

Anastasio, P., & Costa, D. (2004). Twice Hurt: How Newspaper Coverage May Reduce Empathy and Engender Blame for Female Victims of Crime. Sex Roles (51) p. 535-542.

Cohen, Tobi. Personal Communication. February 12, 2011.

Constitution Act, 1982: Canadian Charter of Rights and Freedoms

Maercker, A., & Mehr, A. (2006). What if victims read a newspaper report about their victimization? A study on the relationship to PTSD symptoms in crime victims. European Psychologist, 11(2), 137-142. doi:10.1027/1016-9040.11.2.137

Policy Center for Victims Issues, Department of Justice. Publication Ban. Accessed on February 25, 2011 from http://www.justice.gc.ca/eng/pi/pcvi-cpcv/ban-inter.pdf

Sue Careless. “Battling society’s cold curiosity Debbie Mahaffy speaks out for victim’s rights”. The Interim. 27 July 1993:Accessend on March 7th, 2011 from http://www.theinterim.com/issues/marriage-family/battling-society%E2%80%99s-cold-curiosity-debbie-mahaffy-speaks-out-for-victim%E2%80%99s-rights/

Teague, Ed. Personal Communication. February 18, 2011.

Worthington, Peter. “The Washington Times: Serial killer and cold cash.” The Washington Times. 30 August 1993: Accessed on March 7th, 2011 from http://nl.newsbank.com/nlsearch/we/Archives?p_product=WT&p_theme=wt&p_action=search&p_maxdocs=200&p_topdoc=1&p_text_direct-0=0EB0F0479CF720FF&p_field_direct0=document_id&p_perpage=10&p_sort=YMD_date:D&s_trackval=GooglePM

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Last updated: 2011-02-28

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