THE EDITOR, Sir:
THE CONCEPT of freedom of speech and likewise, freedom of the press to disseminate information remains one of the pillars of our democracy. Equally, the desire in appropriate instances, to place limits on those freedoms, has been universally accepted by the staunchest supporters of free speech. An example of these acceptable limitations is the fact that we do not publish the names of infants who are involved in litigation be it criminal or civil in nature. The names of children (under the age of 12 years in criminal cases) do not appear in reported family or criminal cases. They are not named in cases involving sexual misconduct even in matters where they are themselves the perpetrators of the crime.
The Family Court sits in camera, likewise all cases involving a complaint of a sexual nature are held behind closed doors, away from the public and hence the press. I have become increasingly concerned, with the practice in Jamaica, where we have institutionalised publishing the name, identity and profession of the person the law presumes innocent. This is so, whilst we withhold the identity and justifiably so, of rape victims. I am not here necessarily advocating the wholesale withholding of the names of accused persons. That discussion is for another time and in another place. However, sexual complaints, by their very nature in Jamaica, do leave indelible scars on both the victims of rape and those accused of the crime. For the accused, these scars remain even where he is found innocent by a jury.
THE PUBLIC HAS A RIGHT
I, therefore, call on our Parliament to immediately bring into force laws to protect those accused of sexual offences. This would require that the defendant's name would be withheld pending conviction. Upon the accused being found guilty, the public is entitled to, if not required to know the identity of the person responsible, for the horrible crime of rape. I have witnessed all too often the pain experienced by men acquitted of rape and other sexual offences. Take for example a police officer who was accused of buggering a six-year-old boy and after acquittal he was invited by a mixed jury of seven to lunch with them. He related to me how they empathised with the obvious fabricated allegations which were exposed fully in court. Apart from these jurors who had the benefit of witnessing the allegations crumble under cross-examination, the readers of our leading newspapers, armed with the identity of the acquitted defendant, are left to speculate that he may very well be guilty. Having been saturated with the complainant's allegations only, week after week, they may notwithstanding his acquittal, hang on to the idea that the published allegations were indeed true. More recently a medical doctor whose area of speciality, name and place of work was repeatedly published is similarly left to live the remainder of his life with an injured reputation, notwithstanding his acquittal by a jury.
FALSE COMPLAINTS
When one considers the directions that the law requires a jury to be told in cases of rape, there may be found even more support for my position on the non-publication of the names of those accused of rape. Apart from the often repeated 'presumption of innocence', judges are compelled to instruct juries that they have to be cautious in considering the evidence of complainants in cases of rape. This warning is required where the testimony of the alleged victim is the only evidence against the accused. This requirement has been the law in that, experience has shown, that complainants have told false stories for various reasons, and sometimes for no reason at all. In addition, they must be told that allegations of rape are fairly easy to make, however, very often, they are difficult for the accused to refute.
I trust that common sense, mixed with the desire to do justice, will prevail and those who rightly advocate for the protection of victims of crime can see that there are instances where the accused, for the rest of his life, can become a victim of false allegations.
I am, etc.,
BERT SAMUELS
bianca@cwjamaica.com
Attorney-at-law
33 Duke Street
Kingston
