Does keeping juries impartial mean keeping everyone else quiet?

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When Brittany Higgins, a former government staffer, came forward with her allegations of rape, which she said took place inside Australia’s Parliament building, the entire country came to a standstill. Her claim that she had been assaulted by a colleague in the defense minister’s office while she slept after a night of drinking sparked protests across Australia from women demanding change in a male-dominated political culture.

But this week, journalists and the general public in Australia received a stark reminder that they must be extremely careful about how they report and talk about the case.

A prominent television journalist won an award for her interview with Ms Higgins last year, and in her acceptance speech she praised Ms Higgins for her courage. That prompted the judge in the case to order the postponement of the trial, which was about to begin. The journalist’s comments, the judge said, risked influencing the jury, because his implication was that Ms. Higgins was telling the truth.

The postponement has raised the question of whether Australia’s contempt of court laws strike the right balance between freedom of expression and the right to a fair trial. We previously wrote about how suppression orders barring coverage of sensitive cases have become more prevalent in parts of Australia, and what some legal experts describe as a lack of faith in jurors’ ability to distinguish what they read in media and what they say. listen in the courtroom. Australian courts sometimes even require that books written about a case or defendant be removed before the trial begins, temporarily blacking out information relevant to everyone to prevent it from reaching just a handful of jurors.

Some Americans, accustomed to highly televised trials in which reporters have little off-limits, and in which plaintiffs, defendants and lawyers regularly give interviews during the proceedings, might think that Australian courts they go too far in regulating information before a trial.

But in Australia, the biggest concerns seem to be how the case is playing out as a media trial.

The judge in the case, Chief Justice Lucy McCallum, said she had “displaced” her reliance on the media to report on the case responsibly and went over the sub judice contempt law a bit.

“I’m not sure it was understood until this week that what sub judice means is that an accusation that has been made remains unproven in law,” he said, “so any comment about the accuser, the circumstances what he did it in, his credibility, the number of times he said it and the terms in which he said it, all of these matters are before the court.”

Even discussions of workplace culture “have to dance a delicate dance,” he said. “If the issue is the treatment of an allegation, it’s very difficult to have that discussion without commenting on the inappropriate treatment on the assumption that the allegation is true.”

Johan Lidberg, an associate professor of journalism at Monash University, said the handling of these types of cases highlights the differences between the United States and Australia.

Americans, it is generally assumed in American courts, can make decisions without bias, even if there is coverage of the case that might make them favor innocence or guilt. Ordinarily, removing First Amendment rights to protect a jury would not be allowed.

“There seems to be much less risk in the US of a jury being under the influence of reporting simply because it has always been that way,” he said. “Whereas in Australia there is a tradition of trying to prevent the jury from being influenced by anything beyond what is said in court.”

For Australia, the problem is that tradition is becoming increasingly difficult to maintain in the internet age, given the unrestricted opinions found on social media, which can assume guilt or innocence and are often posted by people who they do not have the same knowledge of the law. what legacy media does, she said.

The reckoning we’ve seen globally in recent years over the treatment of women has also changed the way the media reports sexual abuse claims, Professor Lidberg said, leading to conflict between “listen to women and name the alleged perpetrators and the presumption of innocence.”

“It used to be, especially in sexual abuse cases, that I was very reluctant to report the names of the parties involved,” he said, adding that journalistic best practice would be to keep names out of reports to maintain the presumption of innocence. and not to prejudice potential jurors. “#MeToo changed all that.”

That presents new challenges, in finding the right balance between taking seriously women who make allegations of sexual abuse and recognizing the structural barriers faced by whistleblowers, and maintaining the legal presumption of innocence of the accused.

As Chief Justice McCallum said this week: “The irony in all of this is that the important debate about whether there are deficiencies in the way courts can deliver justice in sexual assault cases to complainants and defendants alike is it has become a form of discussion that at the moment is the biggest impediment to achieving just that.”

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