The problem with Jane Doe
by Robert Fulford

(The National Post, 14 August 2004)

In the recent history of justice, Jane Doe has emerged as a peculiarly sinister figure. That name once indicated merely an unidentified female, but it acquired new meaning about two decades ago when various North American governments reformed their laws on rape. That's when Jane Doe, the shadowy secret accuser, rose to prominence. She looked at first like a solution. Today she looks more like a problem.

Rape laws needed reform because women knew they would be publicly shamed if they brought charges against rapists. In cross-examination, defence lawyers could depict the accusers as promiscuous and the media could disseminate the lawyers' insinuations. But revised regulations have made cross-examination of that kind extremely rare.

New laws also gave judges the power to protect complainants through secrecy. Parliament's 1988 amendment to the Criminal Code allowed judges to order that the media hide the identity of a complainant in a sexual assault case. A further amendment in 1999 encouraged them to shield the identity of witnesses whenever they thought it necessary. American states have similar laws, so it's Jane Doe accusing Kobe Bryant of rape. On Tuesday she became Plaintiff Jane Doe when she filed a civil complaint against him, seeking monetary damages, still anonymously.

In Canada the judicial right to bestow anonymity has been extended beyond the courts, to tribunals such as the College of Physicians and Surgeons panel that recently investigated Dr. Alan Abelsohn, the Toronto GP whose fumbling psychotherapy may have destroyed his career. A woman he treated has accused him of sexual abuse, and his own notes show that he foolishly crossed the line between talk therapy and sexual activity. Testimony has shown that the woman's mental illness led her to manipulate Abelsohn and stalk him.

His name has often been mentioned in public but hers remains secret because a College of Physicians and Surgeons ruling made it illegal to name her. If a newspaper disobeys, the college's lawyer can ask the Supreme Court for an order against the reporter and editors in question.

Even when they are fair, publication bans make the courtroom less open than we expect it to be. But legal scholars give them little attention, and for an obvious reason: No one knows how prevalent they are. There's no national registry of publication bans and no way to create one. Sometimes they aren't even in writing. A judge announces one aloud, which means it goes into the court reporter's notes, to be exhumed later only if there's an appeal. I believe publication bans have greatly increased in recent years, but I can't prove it; nor can anyone disprove it. Lawyers accept this general ignorance as normal, but to an outsider it seems an outrageously casual way of curtailing freedom.

Post-1980 rape laws, however justified they once seemed, now look anachronistic and fundamentally unfair. They assume that being raped is a cause for shame, which was once true. Long ago the revelation of rape damaged a woman's reputation simply by revealing that she was no longer a virgin, but in North America that means little today. The idea that the woman had herself to blame, for getting into a situation where it could happen, has also almost vanished. A generation of public discussion has taught us that rape and related offences are crimes under any circumstances, do not constitute a judgment of the victim, and can happen to any woman. Why, then, should a victim's identity be secret? Doesn't official secrecy imply support for the perverse argument that the victim automatically shares the guilt? Assuming the woman has done nothing wrong, there's no reason she should remain in the shadows.

But even if we continue to grant anonymity to presumed victims, shouldn't we, in fairness, extend the privilege to the accused? If guilty, he has done something despicable. But long before guilt or innocence has been decided, someone like Kobe Bryant has been extensively slandered in court and exposed at least as an adulterer. If found innocent, he will nevertheless wear this crime till he dies. Perhaps, if we follow the logic implied in the present laws, we should save him, too, from unfair embarrassment.

Perhaps we should allow both victim and accused to remain unnamed until the verdict is in and all appeals, if necessary, are exhausted. That way, the court could go about its business without the annoyance of public scrutiny. The attitudes of judges in recent years suggest that many of them would find that an ideal situation.

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