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July 29, 2014

Never assume you can safely name a sexual offence victim – even if you believe the law is on your side

By Cleland Thom

Most journalists understand sexual offences anonymity laws well.

But many forget that the PCC code applies to reports sexual offences, as well – and can be stricter.

This was illustrated last week, when the Northern Echo was ordered to pay costs and damages of around £10,000 after naming a rape victim.

The issue involved a grey area in the Sexual Offences Act 1992. In fact had the Echo not pleaded guilty, they could have mounted a robust argument that they had not breached the anonymity restrictions at all.

Their error arose in court report about a non-sexual assault on a woman.

They published the woman’s surname after the defence barrister mentioned it in connection with an alleged rape.

The rape allegation did not form part of the case, and did not eventually proceed. So the paper believed it was safe to use the name. After all, the Sexual Offences Amendment Act 1992 says the media can identify a sexual offence complainant in criminal proceedings other than the actual trial.

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The Echo’s legal team reasonably thought they were on safe ground.

But even if they had been, clause 11 of the PCC code also requires an ethical decision.

The clause says: "The press must not identify victims of sexual assault … unless there is adequate justification, and they are legally free to do so."

There is no public interest exception for clause 11, and MacNae's says: "Adequate justification arguably embraces the idea of public interest.’ And it’s very difficult to imagine any circumstances these days when an editor could claim he/she named a sex offence victim because there was ‘adequate justification’.

Clause 11 can even apply if a victim agrees to being named.

I once advised an evening paper not name a woman in a human interest feature on the aftermath of a rape, even though she had consented in writing. She was suffering from emotional and psychological problems, and I was unsure if naming her could be ‘adequately justified’ – the article might have had an adverse effect on her.

So the advice is: never assume you can safely name a sexual offence victim, even if you believe the law is on your side.

Cleland Thom is a consultant and runs distance learning courses in media law

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