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Russell Wangersky: Naming names in court

Lady Justice is an allegorical personification of the moral force in judicial systems. A blindfold represents impartiality, the ideal that justice should be applied without regard to wealth, power or other status.
(File Photo)
Lady Justice. — Photo via Wikimedia Commons

Ah, the humble lawsuit.

Sometimes, it’s the result of the genuinely aggrieved trying to get their due in the only way they can.

 

Other times, it’s a punishment — people who keep a suit going just to keep the other side paying lawyers.

But what if just filing the lawsuit, and putting names out there, is an end in itself?

There’s a curious case in Halifax that’s getting some attention through the CBC, but probably should cause a fair amount of thought.

There, two as-yet unnamed businessmen went to court to try and keep their names from being used if a sexual harassment lawsuit is filed against them.

Here’s the case in a nutshell, once again courtesy of CBC: a woman, also unidentified as of now, dealt with the businessmen a number of years ago as a representative of another business. That the two men had sexual contact with the woman several years ago is not in dispute; the nature of the relationships is.

In a Facebook message to one of the men, the woman allegedly pointed out (none of this has been tested in court yet) their “very special relationship which I respectfully kept in confidence.” She also allegedly wrote, “This is a one-time request of $6,500 which you can consider a gift to me. I was hard hit financially by my marriage ending and I knew I could turn to someone who shared a mutual understanding of what trust means.”

When he refused to pay, she is supposed to have pointed out, “A client/rep relationship could be construed as sexual harassment on your end. I had to live up to the expectations of my client.”

Court documents indicate the woman’s lawyer told the other businessman that the woman was looking at suing, but “was prepared at this stage to address possible resolution without making this matter public.”

Leave aside the particulars of this case for a moment.

The general rule is that court is an open process: people’s names are used unless a convincing argument can be made for keeping them under wraps. That openness is part of justice being done.

At the same time, an argument is regularly made that cases involving sex are different — and, especially in criminal cases, they are treated differently. Complainants aren’t identified as a rule, unless they ask to be, and that sometimes extends into civil cases as well.

So, here’s the question: should we perhaps be looking at a different process? Should anyone be identified in a case involving sexual assault or harassment, civil or criminal, before the court actually rules on whether the behaviour actually took place?

One thing’s for sure, people who are accused of sexual harassment have a hard time clearing their names, even if they’re eventually acquitted, especially now. Some pundits have actually described it as a life sentence with no chance of parole.

Name-and-shame may be immediately effective, but it’s also indelible. Once in the public forum, it’s as if guilt has been established, and the stain rarely ever leaves.

So, here’s the question: should we perhaps be looking at a different process? Should anyone be identified in a case involving sexual assault or harassment, civil or criminal, before the court actually rules on whether the behaviour actually took place?

I realize that is a contentious position to take; after all, it’s not easy to bring a case forward in the civil courts, and you have to wonder just how many people would want to face the costs and effort involved if they truly did not believe they’d been wronged.

But we have to have reasonable protections for everyone involved — and perhaps the best way to do that is by leaving the naming and shaming until after a final determination is made by the courts.

In the end, the judge in Halifax ruled that if an actual lawsuit does surface, everyone’s names will be public, saying that, though people involved in all sorts of civil cases might want to keep their names under wraps, that’s not the way the court currently works.

Let’s see what’s next.

Russell Wangersky’s column appears in 39 SaltWire newspapers and websites in Atlantic Canada. He can be reached at russell.wangersky@thetelegram.com — Twitter: @wangersky.

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