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Words last forever

November 3, 2011

As the court clerk set down her pen and the lawyers stuffed papers back into their briefcases, I stood and turned to leave the courtroom like I always do: with authority. No eye contact. No hesitation.

The galleries of Canadian courtrooms are chiefly populated by three subsets of people: the accused; the families of the accused; and the families of victims. I prefer to talk to none of them. At least, not in the courtroom. (There will be more on victim-journalism in another post).

As I rose to leave, notebook in hand, a large middle-aged woman who had been sitting behind be reached out her hand to halt my progress.

“Are you going to write about this?” she asked me in a hesitating, unsure voice.

I could tell that she wasn’t a fan of the idea, but I was (both a fan of the idea and going to write about it), so I raised my notepad and confirmed her suspicion.

“Oh…Well, could you not use my son’s name?”

I told her that, if I did write about that day’s proceedings, I would certainly need to name her just-sentenced son. He had just pleaded guilty to an assault in which a woman had been viciously assaulted. He was 40 years old. He had a criminal history. He was not a sympathetic character. But, most importantly it seems, I knew his name and thus I was obligated to report it.

While I have no qualms over having used the man’s name in the story that I did eventually write about the case, the woman’s plea, along with several other recent cases, has led me to reconsider whether it’s morally right to always name those accused of crimes.

————

Let’s get one thing straight: There should be no laws governing when a reporter can name a person. If I’m not a free speech absolutist, I’m pretty darn close. One should always have the right to say what one wants. Whether doing so is morally right, though, is another matter altogether.

I also have no regrets over any of the stories I have covered (by which I mean those stories for which I did more work than simply rewrite a cop press release). That said, two elements of modern journalism pose ethical quandaries when it comes to naming those charged with crimes. The first is the internet, and the second is the police.

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It starts with the internet. Obviously, the WWW has a tendency to preserve, indefinitely or for long periods of time, most everything published. It’s now standard practice to google someone before you hire him or her. Thus, anything written that contains one’s name — especially if it’s a fairly unique name (say, Sergio-Frank Alcatram) — can have a lasting and sometimes negative impact on a person’s career and life.

This marks a massive change from the days when items published in one day’s newspaper would quickly slink into the past. And it poses a challenge to subjects of newspaper stories who are trying to reform themselves, or who may have been charged but never convicted of a crime.

Also, the way Google ranks pages means that even if a journalist is diligent in following cases through the criminal courts and reports when an accused is acquitted or cleared of a crime, a search for a person’s name may only turn up the article naming them as an accused in a certain case. Even if a newspaper is super-diligent and updates all past stories with the eventual outcomes of the cases, that doesn’t necessarily fix things, because stories are often copied and pasted on various Internet forums and special-interest sites.

And the cops compound the problem.

The incidents I am thinking of when I consider whether it’s right to name accused criminals generally involve fairly minor crimes. These are auto thefts or minor arsons or other symptoms of general juvenile delinquency. The police release the names of the accused and because all news outlets in one community have the information, all feel the need to publish the names, if only to keep up with the competition. The Mounties, though, only post press releases on a small selection of offences committed and solved. They choose whose names will be released and who will not have to face the certain trauma that must accompany, say, a father seeing his son’s name under the headline “Suspect arrested.” (The court list can be used to overcome this, but only to a certain degree as public information regarding accused crimes is generally no longer than two or three sentences.)

Alone, this is also not a large problem. If you’re arrested and charged with a crime, that’s your fault. You should have known it was illegal. But when you factor in the Internet’s potential long-term affect on the accused, the consequences of being outed by the media become substantially more severe, especially in the case of crimes that may result in a suspended sentence or a short term of probation. And it gives me the heebie jeebies to leave the power to name and shame those charged with crimes to the police.

All this is very abstract here. Let me give you a fictional example of the sort of thing that troubles me.

————-

Community X, let’s call it Notsopleasantville, has a problem with arsons. Every day, something is burning. Sometimes it’s an abandoned shack. Sometimes it’s a piece of playground equipment. Sometimes it’s a car in an out-of-the-way part of town. And sometimes it’s a dumpster.

The public is fed up and so are the cops, who have invested significant resources into catching the perpetrators. They don’t know who is responsible for the arsons, or whether they’re linked at all; often a single person can be responsible for a great number of property crimes. But then again, teenage boys, of which there are many, also like to burn things. It’s kinda what they do.

It’s Nov. 5. Joey, 17, and Johnny, 18, are hanging out at the skatepark when Johnny tells Joey that he has a roman candle that he bought for cheap the day after Halloween. They’ve heard that there has been a rash of arsons, but don’t know who is responsible. Or really care. Whatever. Both have set off roman candles in the past. They’re kind of bored of them now. After a brainstorming session, they decide that it would be cool to see what happens when you set off a roman candle inside an empty duster. Will it bounce around? Shoot sparks out the sides? Cause the lid to fly up?

So they set off the candle, gawk at the ensuing explosion, then take off running down a back alley. Alas, they run right into a police cruiser parked on a street with a cop taking a break. He stops the kids, then hears over his scanner the report of the nearby dumpster fire.

The Mounties arrest the kids who breaks down and says he did it. Both are charged and the Mounties, wanting to brag about finally catching an arson, put out a press release summing up the case. Despite being born just a month apart, one boy is considered a youth while his friend is an adult. The media cut all the fluff, and run the short police brief way back on page 7. But now Johnny’s name is on the public record. It doesn’t matter that his case gets stayed because there are no actual witnesses and Crown counsel thinks the kid really is a pretty nice guy who made a stupid mistake. Google his name — Johnny Szchewskijjj — and you come to the story of the arson. He wanted to be a teacher. This isn’t going to help.

—————

The above is not an extreme case. It worries me. Naming the kid does little. It can’t be a punishment because he hasn’t been convicted and thus must be presumed innocent. It’s not in the public interest: while disruptive and sometimes dangerous, those who set off fireworks in the wrong places generally aren’t menaces of whom the community should be aware. And the kid is so young that his still-growing brain may turn him into a markedly less arsony person in a couple years.

But leaving his name out also poses a couple obvious problems:

1) Doesn’t being a journalist mean publishing all relevant and true information? Don’t we assume that the more information is publicly available, the better decisions society will make and thus we should never NOT publish something we know to be true and of interest?

2) Where does one draw the line? Who deserves to be shamed for his or her actions, and who deserves to have his or her name omitted from police reports? How serious must a crime be? How checkered must a person’s past be?

Both issues are difficult to reconcile with the premise of this post (that not every accused criminal should be named). In trying to do so, I feel a bit like I’m justifying my position. And yet, I think that there must be a middle ground that allows one to be a free speech advocate and a responsible reporter.

Here’s how I reconcile my position on each question:

1) Doesn’t being a journalist mean publishing all relevant and true information?

First, let’s acknowledge that stories on crime are always edited. First, the police edit what they tell the media. Then the reporter collects information, and edits and assembles it into a news story. The names of those charged with a crime are usually thought to be some of the most important information; a whodunnit is a whodunnit, not a wheredunnit or a whydunnit. But sometimes a story makes a newspaper simply because the paper has a hole to fill and a police news release with which to fill it. In such a case, then, a name is relevant only to an otherwise irrelevant story. It seems gratuitous, in such cases, to publish a name.

Don’t we assume that the more information is publicly available, the better decisions society will make and thus we should never NOT publish something we know to be true and of interest?

Yes. This is the best argument for publishing every name you get. Laws already prohibit us from doing so in the case of sexual assault victims and youth offenders and a rash of others, and we shouldn’t encourage more restrictions. More information is always better, I think. But, at the same time, unless we publish the name of every single person accused of, say, stealing a bait car, publishing the names of only those who the police choose to name becomes sketchy. I would favour naming every person accused of a crime. We can’t do that though. So we must pick and choose. Which brings us to my second set of questions.

2) Where do you draw the line? Who deserves to be shamed for his or her actions, and who deserves to have their name omitted from police reports?

This takes some parsing, but I think the key here is to recognize what distinguishes i) someone whose future may be in jeopardy because of a momentary prank or thoughtless act and an ensuing newspaper article, from ii) someone whose future is in jeopardy because of either repeated criminal activities or potential or actual violence committed against another person.

The first case involves someone whose criminal activity was either accidental or involved a single moment of stupidity. The second involves those whose characters are revealed by the crimes of which they are accused.

How checkered must a person’s past be? How serious must a crime be?

As journalists, we need to air on the side of exposure. The question, then, is not how bad must a crime be for you to publish the accused’s name, but the opposite: what offences are so minor so as to make it unethical to shame and out the person accused. So let’s start with this: I would feel wary of naming someone who has committed a single offence with no victim, little or no planning, and for no personal gain. If you’re accused of a crime that the majority of Canadians believe should not be a crime (hello, pot possession), that also gets you off the hook. (Pot production is trickier, seeing how it’s often linked to gangs). I think age also factors in. I think someone who drinks and drives at age 30 or 40 is more culpable than an 18-year-old who does the same. The teen can learn from his actions and their consequences, the 30-year-old has had time to learn, but hasn’t, and is putting the public at risk because of it. He has thus forfeited his right to privacy.

———–

I think I’ve formulated a pretty good set of rules. Or I thought. Then news broke that Vancouver Police were recommending charges against 60 rioters for a variety of crimes, from assault to B&E to possession of stolen property to arson. Names were not released, but they will be at some point. And if one of the accused is from my community, I’m pretty much obliged to report on the fact, even if he’s only charged with, say, using a hockey stick to bash in a window in the excitement of the riot.

I could rationalize it and invent a new rule that stipulates, somehow, that all rioters can be named. But it would be a self-serving rule. And perhaps that illustrates the dilemma that we as journalists face when we consider even a minor attempt at benign self-censorship. A local link to the rioters is too good a story to pass up or ignore because of a contrived rule about naming those charged with a crime. And so, there will remain certain cases in which an accused may find their names forever linked to a minor crime from their late-teenage years. So be it; press freedom and all that jazz.

Still, when it comes to smaller, more inconsequential stories that are run only to fill space, it’s worth at least pausing to think about the damage done to the person named is worth the extra sentence or two you will wring out of a dull cop press release. But if you want to go ahead and publish, publish, publish, all the power to you.

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