The Decibel - The sexual assault survivors fighting their own publication bans

Episode Date: June 21, 2023

Publication bans have become all but automatic in sexual-assault cases across Canada. These bans were put in place to protect survivors who have come forward. But My Voice My Choice, a group of women who are fighting those publication bans, argue that these bans prevent survivors who want to speak openly about their experiences.Molly Hayes and Zosia Bielski are national news reporters for The Globe and Mail. They’re on the show to explain the limits of these publication bans and the group fighting to make their voices heard.Questions? Comments? Ideas? E-mail us at [e-mail]

A heads up that today we'll be talking about sexual assault, so please take care. I'm Kelly Favreau and I'm from Victoria, British Columbia. In September of 2015, I was sexually assaulted by somebody I was casually seeing for about six weeks. A week after the assault, I reported to the Victoria Police Department out here. In July of 2016, I was on the stand for a full day and it's demeaning. Your character is completely attacked. Everything you think you know about yourself, you're just so vulnerable on the stand, it's terrible. The verdict came out and thankfully he was found guilty

on one count of sexual assault. He was sentenced to 18 months house arrest and had to pay a $100 victim surcharge fine. Kenneth Charles Erickson was charged, convicted and sentenced. But when Kelly was searching for information on her case, she couldn't find it. So in December of 2020, over five years after I reported, the courts told me that there was a publication ban on my name.

I did not consent to a ban. I did not ask for a ban. I certainly did not want a ban. The publication ban meant anything associated with her case, including the name of the man who assaulted her, wouldn't come up in a search. And anything that Kelly shared herself could be considered a breach of that ban. And so I said, of course, we'll just take it off. Like, I just figured, like, oh, I didn't want this. Like, just take it off. I'm done. And they're like, yeah, it's not that simple. Kelly fought this, and that's why we can talk about her case today. But she and other women are still fighting to bring more consent to publication bans.

And now, there's also a new bill that aims to change things. Globe reporters Molly Hayes and Zosia Bielski have been following this story. They're on the show to tell us why this is happening and what could be done differently. I'm Mainika Raman-Wilms, and this is The Decibel from The Globe and Mail. Molly, Zosia, thank you so much for being here today. Thanks for having us.ia, thank you so much for being here today. Thanks for having us. Yeah, thank you. So, Molly, we just heard from Kelly Favreau a moment ago in the intro about how there was a publication ban on her sexual assault case. So how do publication bans work when applied to sexual assault cases?

So these are applied almost automatically at the beginning of these cases. So at the outset of a trial in court or when a charge is laid, even well before a trial, a crown will request it and a judge will order it. And they do exist in other contexts. Youth cases, for example, the identities of youth in the system are always protected. And also bail hearings is another place where I run into them all the time as a reporter. And basically the point of it is to keep the victim or complainant's identity out of the media. So, you know, it doesn't mean you can't cover the case, but you can't cover any details that might identify them to the public. Okay. And what does it do? What does a publication ban do? Basically, the goal is to protect the victim or complainant from the media. I mean,

these date back to the 1970s. So when you think of what publication meant at that time, you know, we are basically talking about the media. The goal was to encourage women to come forward and to report these cases without having to fear that their names and faces and the details of their case would wind up in the news or on the front page of a newspaper. Zosia, something that I was surprised to learn was that many of these women that you spoke to about this, they aren't even told that the publication ban is on their case in the first place. So why is that? How is that possible? So essentially, many of the women we spoke to and other women who've come forward with complaints have found that they aren't consulted by the Crown when these pub bans are imposed. And they sort of find out in a haphazard way.

One of the women we spoke to wanted to participate in a podcast and was suddenly warned by Crown that she had a pub ban in her name. So because of the nature of the court system, the women are often not present when the Crowns request these bans. They don't have to be in court when those bans are presented at the first appearance. So crowns are overworked. We've heard that over and over again. And there often sort of just isn't time logistically to inform victims that they've got a pub ban in their place. That's no excuse, but that seems to be the story we heard

time and time again. The role of a crown is not to represent a victim. You know, they represent the state or society sort of at large. And so that is not somebody that is there to give them legal advice or to represent them. The cornerstone of these cases is consent as far as sexual assault goes. And that consent has also not been extended to their right to speak freely or to be consulted on whether they would like to be shielded in this way or not. So just to be clear, so the pub ban was initially so that the media can't report and out them. But because of this ban, they themselves now are not able to say their name and share their story then. Is that right? Exactly.

And that goes back to what Molly was saying about how publication, the nature of publication has changed. You know, when we were talking about the 70s, publication really entailed the media, news outlets, and now we can all publish, whether it's social media or podcasts, email, texts. Publishing is such a broad concept now. So, you know, the law essentially says a judge may order any information that could identify the victim, shall not be published in any document or broadcast or transmitted in any way. So that's very broad. That's very vague. And women have been warned time and time again that they should be very careful with how they discuss their case in the public through any of these means.

What happens if a survivor does decide to go public with their information when there is a publication ban on their case? Well, essentially for anybody who breaches a pub ban, whether that's media or another party, so far up until now, the maximum penalty would be a $5,000 fine and up to two years in jail. So that's sort of a maximum for anybody who breaches a ban. And we actually did have a precedent-setting case in 2021 with a woman in Kitchener-Waterloo. A wife had accused her ex-husband of sexually assaulting her. He was convicted. And she went ahead and asked for a court transcript of the ruling and shared that via email with her family and friends. She had no idea her name was under a pub ban. She hadn't been consulted. So she went ahead and emailed that to family and friends. It got back to her ex-husband who

alerted police. And essentially, she was hauled into court, fined $2,000 and secondary victim surcharge, $600. And it sort of sent a chill through the community and advocates of victims of sexual assault because clearly the spirit of the law was to protect the victim. And here it was being sort of weaponized by the offender. Yeah, she gets fined for sharing her own information, not even that publicly, like you said, through emails here, but she's actually getting penalized for that. That's incredible. So the offender was essentially able to sort of use the legal system against her. Ultimately, that case was appealed and the conviction overturned and her fees were repaid. But it was sort of a chilling precedent that the women fighting the way pub bans are imposed are pointing

to and never, never want to see repeated. We'll be right back. So in Kelly's case, she did end up getting her publication ban overturned. But it sounds like it was quite an ordeal that she had to go through in order to do that. So, Molly, what was the process like for her? Yeah, so she was able to get it removed, but it also took her half a year to do so. She was saying to me, you know, as soon as she put in the request to the courts, it became obvious that it was when the court decided that her convicted sexual assaulter should also get a say and was brought in to weigh in on whether or not this should be lifted hearing his voice say you know she she shouldn't get the ban off her name it's like

even just saying those words out loud again like I still have like an emotional reaction to it because it is humiliating right like not only did this guy violate me for two hours but now he has a say and if I can say my name like are you kidding me ultimately the judge did decide that you know her desire outweighed what he wanted um and he wanted it to stay on. He cited the flack he was getting online and said he'd prefer that the case stay under pub ban. So the judge did ultimately overrule that and allow her to lift it. But just the fact that he was consulted at all was demoralizing. It was never intended to protect the offender's name. The offender's name is public. So again, it's a misapplication of the law. And women are just galled that offenders are being consulted on whether they could speak out publicly or not. What about the rights of the accused? Like, do they have any right to a publication ban?

No, like, you know, the spirit of this is to protect victims. So it's just simply not about them. You know, we have an open court. And so it's not like this is just one aspect of the justice system that operates in secret. You know, it's very specifically about protecting victims when they want it. So, you know, if you're accused and acquitted, then that's what would be said. You were accused and acquitted. That's always going to be part of the equation. But I think it's important to think about like the landscape of the justice system. So, you know, like I'm doing with my hands like a pyramid. If you think of how many women are not reporting at all, we know this is a seriously underreported crime. And then you think of from there, the number of women who report,

but it doesn't lead to charges. I mean, you know, Robin Doolittle's Project Unfounded laid this out. And then from the women who did report, did get charges, did go to court, only so many of those are going to lead to convictions. And so, you know, if we were to shield this whole thing in secrecy for the sake of the accused, we would just have no idea how any of this works. So Kelly is a member of a group called My Voice, My Choice. They're pressing for legislative changes here. And this is kind of partially because, you know, she said the process that she had to go through to lift her own publication ban was really frustrating, which is why she wants to see things change. There is no information out there. Like I had to rely on, you know, sexual assault support groups, like community groups, like not put on by any organization.

It's just, you know, what works for others and what didn't. And then, you know, I found out I had this ban on my name and then I found out that I could go to. And I found out that I could get fined. And I was like, no, I'm screaming about this. I'm screaming about this from the tallest mountain. And in April of 2021, I stood on the steps of the BC legislature with a microphone in my hand. And I said, my name is Kelly Favreau. I'm a sexual assault survivor. I have a ban on my name. Come get me. I'm right here. Come get me. Yeah, I mean, I think it's infuriating for them. It feels paternalistic. And in many of the cases, you know, from the woman we spoke to, it's compounding the trauma that they've gone through. Yeah. And just to be clear, they're not arguing to get rid of pub bans altogether, right?

No, I think everyone acknowledges that there are tons of reasons why women might not want to do that still. And so it's not a bad thing that these are applied sort of right out the gate as a precaution. But what they're calling for is that there's very quickly engagement and consultation and they make sure that that's actually what they want. So, you know, it's a good thing to do

before you've had that conversation actually what they want. So, you know, it's a good thing to do before you've had that conversation because, as they say, like you can't put the horse back in the barn. But it's about having that engagement and consultation and making sure that not only they are choosing whether to have one or not, but also that they fully understand, you know, what it means and what the repercussions are of lifting one. Yeah. There is, of course, good reason for publication bans, as we've established. And I know you spoke to one expert who said that especially for racialized women,

a publication ban can act as a kind of layer of support. Can you explain what that means? Yeah. So that was Anuradha Dugal, who is a VP with the Canadian Women's Foundation, you know, she spoke about the realities of the justice system and the distrust that many women have, especially racialized women. And there was this quote from our interview that sort of stuck with me through the reporting. And she said that being public about your story can be, not always, but can be a marker of a certain kind of race privilege or class privilege that you might have. And so I just think that is an important perspective to remember that what we're seeing in Ottawa and this fight, it is a victory for some women, but there are also many, many women out there who have very good reason to not want to go public with their stories. Yeah. The key is having a choice one way or the other,

no matter what your walk of life is, economically, socially, racially. All kinds of women have different feelings about going public, different reasons, different needs. And the point is to sort of make the system more responsive to victims in this very small, small way. Yeah. So how does My Voice, My Choice, how do they want to see this process changed? So first and foremost, they would like far more clarity and information for complainants about what is the purpose of a pub ban? How do they work? If you'd like to change it, modify it, or have it removed, how do you go about doing that? And they want victims to sort of have access

to all of this information right off the bat. And they want some kind of staff in court that's yet to be determined, whether that's legal aid or other support staff that can walk complainants through the pros and cons in their case of either keeping or rescinding these bans. And the second thing that they are absolutely pushing for is some kind of language enshrined in the law that would, you know, end the criminalization of any complainant who unwittingly breaches their pub ban. So those are two things they're really pushing for. And they want all of this information sort of available in many languages and accessible to women from all kinds of walks of life, complainants from all kinds of walks of life. And there is a bill in the works right now in federal parliament to actually change some of these things. So what does that bill include, Molly? And how does that compare to what this

group is asking for? Yeah, so I think it, you know, big picture, it is certainly addressing their calls, but the issue now is that it needs to be refined. And, you know, legal experts are also part of this effort now to make sure that there's not unintended consequences. So, for example, it makes clear that a crown who is looking to apply a publication ban would have to reach out and consult with the complainant. But there's not really clear language about what that means. Like, is it a phone call?

Is it an email? Like, you know, how do we make sure that that is sort of clearly laid out. And another part that was identified as, you know, potentially backfiring is that any complainant who wishes to lift their publication ban, it says they should have access to a hearing. And so some are saying, well, a hearing is a bit of a formal process, like maybe that overcomplicates it. Maybe we should be making it, you know, as simple as possible and doesn't require bringing everybody back into the courtroom to deal with it. And so that's sort of where we're at now is the tinkering phase and refining it to make sure that it's not only gets at the spirit of the calls, but also does so in a practical way. And so what stage is this bill at right now?

So it was introduced in the Senate in the spring. So it's moving its way through the system. And Justice Minister David Lamedi sort of estimates a timeline of October. That's when he explicitly said he'd like to see something formal rolled out. Just lastly here, Molly, we've been talking about, you know, one segment of sexual assault cases, but I wonder what do the women that you spoke to for this story, what do they think about the broader picture of how courts treat survivors of sexual assaults and the process that they have to go through? I think that's a huge part of this. And for me, like it goes back to my experience with the courts and with pub bandsans as a reporter. You know, I am used to

encountering these, whether, you know, I hear one being ordered out loud in a courtroom, or I see one laid out on a document. And it doesn't mean that you can't cover a case, but it does mean that you have to leave out any potential identifying details. As a result, we don't often tell these stories. And so for the victims, it's not just about being able to talk about what happened to them in terms of the sexual violence, but also about what happened to them in the courts. And I think that's a really important part of this, you know, if we're going to start trying to fix the system. Women don't simply want to talk about their personal stories or vent. They also have deep issues with the system at large and the way it does fail to provide remedy in many cases. And all of that information is being sideswept as well through the pub vents for sort of being

imposed in their names. Molly, Zosia, thank you so much for taking the time to speak with me today. Thank you. Thank you. That's it for today. I'm Mainika Raman-Welms. Our summer producer is Nagin Nia. Our producers are Madeline White, Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show.

Adrienne Chung is our senior producer, and Angela Pachenza is our executive editor. Thanks so much for listening, and I'll talk to you tomorrow.