politics #5: Trial by media and contempt of court: Derryn Hinch naming and shaming sex offenders
In the Australian media, the line between what the ‘public interest’ and what the public is ‘interested in’ is blurry, particularly with respect to the discussion of anything sexual or traditionally private. The ethics surrounding the dissemination of this information become hairier when we introduce the concept of utilitarianism and attempt to balance the public’s right to know with the right of individuals to their privacy. Journalists occupy a position in society that gives them the power to affect people’s lives with the information they release, and their actions are the result of their reasoning. If their reasoning is flawed and their loyalty to a particular group is stronger than their commitment to ethics, the consequences of their actions may be harmful to others.
Derryn Hinch at work on 3AW. Picture: Rob Baird
A topic which many consider to be a black and white issue is that of protecting the privacy of sex offenders. Most cultures around the world have an uncompromising position when it comes to the protection of their children. So entrenched is this in our society that the Convention on the Rights of the Child (CROC) is heavily integrated into Australia’s legal system. But our society is comprised of many different individuals and their rights are enshrined in the Universal Declaration of Human Rights (UDHR). Often, in the pursuit of greatest happiness for the greatest amount of people, the rights of these individuals are forgotten or actively disregarded. Some would argue that in committing such a heinous crime, offenders have removed yourself from the same category of human and you are no longer entitled to these same rights. A case could be made that ‘the people’ no longer includes groups such as sex offenders. Acting in the interests of the ‘greatest amount of people’ would no longer come with the niggling reminder that the utilitarian principle is flawed.
It is reasoning similar to this that journalists might use to justify their actions. In 2011, Derryn Hinch was convicted of four counts of contempt of court after he breached a suppression order by broadcasting the names of four sex offenders before the final verdict. On his website www.HumanHeadline.com.au, he acknowledged he was well aware of what his actions might cost him, but said, “So when I ask the question: ‘Who’s looking after the children?’ you’ll be able to say…’ We’re trying to. We’re trying to’ .” [Hinch 2011] Hinch acted in contempt of court and instigated a trial by media. In Full Court, Judge Nicholson was willing to let it slide because of the time between Hinch’s influence and the final decision [Pearson and Polden 2011:103]. Susan Merrell says in her opinion article on The Drum [www.abc.net.au/unleashed], ‘No-one believes trial by media is fair play - all other things being equal. But, of course, they never are - are they?’ [Merrell 2011]
The different approaches to and outcomes of the situation indicate a difference in their reasoning. It begs the question of how the media, our supposedly objective free press, came to the decision they did. The Potter Box Model of reasoning is useful tool to help us locate where most misunderstandings occur [Christians et al 2005:3]. In a cycle, you observe the definition of the situation, the values you each hold on the topic, the principles these values stem from and finally, your loyalties and where they lie. The media as our fourth estate has a loyalty to the people in keeping the government honest and so is bound to act in their best interests. Their moral duty is to their clients, subscribers and supporters, not necessarily to society [Christians 2005:22-23].
It is important to note that it is our battle between top-down and bottom-up reasoning that causes these problems. We all reason that we act in accordance with the same principles, but our personal values lead us astray and we tend to view events on a case-by-case basis. Steven Cohen notes that our moral discussions tend to begin at a general point, not beginning with an ‘immediate reference to the most general, foundational principles’ [Cohen 2004:65]. But if we are to adhere as tightly to these principles as possible, we may find that in the interest of protecting everyone’s rights, we find no room to move to protect even some of them.
ETA: I will also add that Derryn Hinch's more recent 'name and shame' differs to this case. In the more recent April 2012 case, Hinch named a sex offender some years after he was convicted, not in the middle of a trial as with the 2011 case. In the 2012 case, the sex offender's name was suppressed by the courts post-trial. Hinch says the victim, a young woman, wanted justice. At this stage, was it more ethical for Hinch to name this offender in the public and victim's interest, nearly 20 years later?
The case is further complicated by the victim coming forward and saying she didn't want herself identified through her father, despite earlier evidence that she felt he should be brought to justice publically.
“His identify was protected, yet these intimate details about me are not protected at all. How can, on the one hand, they protect this man’s identity, and on the other hand, deny the victim’s right and the rights of society to know he is a convicted paedophile?”
…
‘‘She said ‘I’m happy to be named," Hinch told Fairfax. "Her exact words were: ‘I want to be a role model for other victims'.’’
‘‘The exact words are in my mind. I said ‘You’re very brave’. She said ‘No, I want to be a role model’.’’
He said he also spoke to the woman when he was off-air last night and she requested her name be taken down from the website amid fears she could be in contempt of court.
[news.com.au, 2012]
This has further complicated matters. Hinch is now responsible for not only naming a convicted sex offender in contempt of court, but potentially also releasing this woman’s information against her will.
It’s the public versus the individual. Should Hinch be able to make these calls, just because he’s pledged to continue to name and shame sex offenders?
Read more: http://www.news.com.au/national/derryn-hinch-names-convicted-paedophile/story-e6frfkvr-1226317124520#ixzz1rzBBApNB
Christians, C.G. et al. (2005) (eds) ‘Ethical foundations and perspectives’, Media Ethics: Cases and Moral Reasoning, 7th Ed. Boston: Pearson, pp. 1 - 25.
Cohen, S. (2004) The Nature of Moral Reasoning. Oxford: Oxford University Press, pp. 57 - 72.
Hinch, D. (2011) ‘Name Them and Shame Them Rally’, The Human Headline 1 April 2011. [online] Available at: http://www.humanheadline.com.au/name-them-shame-them/name-them-shame-them-rally.html. [Accessed 28 March 2012]
Merrell , R. (2011) ‘The thin blue lines between justice and contempt ’, The Drum Opinion (Australian Broadcasting Corporation), 6 June 2011. [online] Available at: http://www.abc.net.au/unleashed/2747044.html. [Accessed 28 March 2012]
Pearson, M. and Polden, M. (2011) The Journalist’s Goal to Media Law 4th Ed. Sydney: Allen and Unwin
Staff Writers. (2012) ‘Sexual assault victim claims she didn’t give Hinch permission to identify her’, April 3 2012 on www.news.com.au. [online] Available at: http://www.news.com.au/national/derryn-hinch-names-convicted-paedophile/story-e6frfkvr-1226317124520#ixzz1rzBBApNB. [Accessed 14 April 2012]
Derryn Hinch at work on 3AW. Picture: Rob Baird
A topic which many consider to be a black and white issue is that of protecting the privacy of sex offenders. Most cultures around the world have an uncompromising position when it comes to the protection of their children. So entrenched is this in our society that the Convention on the Rights of the Child (CROC) is heavily integrated into Australia’s legal system. But our society is comprised of many different individuals and their rights are enshrined in the Universal Declaration of Human Rights (UDHR). Often, in the pursuit of greatest happiness for the greatest amount of people, the rights of these individuals are forgotten or actively disregarded. Some would argue that in committing such a heinous crime, offenders have removed yourself from the same category of human and you are no longer entitled to these same rights. A case could be made that ‘the people’ no longer includes groups such as sex offenders. Acting in the interests of the ‘greatest amount of people’ would no longer come with the niggling reminder that the utilitarian principle is flawed.
It is reasoning similar to this that journalists might use to justify their actions. In 2011, Derryn Hinch was convicted of four counts of contempt of court after he breached a suppression order by broadcasting the names of four sex offenders before the final verdict. On his website www.HumanHeadline.com.au, he acknowledged he was well aware of what his actions might cost him, but said, “So when I ask the question: ‘Who’s looking after the children?’ you’ll be able to say…’ We’re trying to. We’re trying to’ .” [Hinch 2011] Hinch acted in contempt of court and instigated a trial by media. In Full Court, Judge Nicholson was willing to let it slide because of the time between Hinch’s influence and the final decision [Pearson and Polden 2011:103]. Susan Merrell says in her opinion article on The Drum [www.abc.net.au/unleashed], ‘No-one believes trial by media is fair play - all other things being equal. But, of course, they never are - are they?’ [Merrell 2011]
The different approaches to and outcomes of the situation indicate a difference in their reasoning. It begs the question of how the media, our supposedly objective free press, came to the decision they did. The Potter Box Model of reasoning is useful tool to help us locate where most misunderstandings occur [Christians et al 2005:3]. In a cycle, you observe the definition of the situation, the values you each hold on the topic, the principles these values stem from and finally, your loyalties and where they lie. The media as our fourth estate has a loyalty to the people in keeping the government honest and so is bound to act in their best interests. Their moral duty is to their clients, subscribers and supporters, not necessarily to society [Christians 2005:22-23].
It is important to note that it is our battle between top-down and bottom-up reasoning that causes these problems. We all reason that we act in accordance with the same principles, but our personal values lead us astray and we tend to view events on a case-by-case basis. Steven Cohen notes that our moral discussions tend to begin at a general point, not beginning with an ‘immediate reference to the most general, foundational principles’ [Cohen 2004:65]. But if we are to adhere as tightly to these principles as possible, we may find that in the interest of protecting everyone’s rights, we find no room to move to protect even some of them.
ETA: I will also add that Derryn Hinch's more recent 'name and shame' differs to this case. In the more recent April 2012 case, Hinch named a sex offender some years after he was convicted, not in the middle of a trial as with the 2011 case. In the 2012 case, the sex offender's name was suppressed by the courts post-trial. Hinch says the victim, a young woman, wanted justice. At this stage, was it more ethical for Hinch to name this offender in the public and victim's interest, nearly 20 years later?
The case is further complicated by the victim coming forward and saying she didn't want herself identified through her father, despite earlier evidence that she felt he should be brought to justice publically.
“His identify was protected, yet these intimate details about me are not protected at all. How can, on the one hand, they protect this man’s identity, and on the other hand, deny the victim’s right and the rights of society to know he is a convicted paedophile?”
…
‘‘She said ‘I’m happy to be named," Hinch told Fairfax. "Her exact words were: ‘I want to be a role model for other victims'.’’
‘‘The exact words are in my mind. I said ‘You’re very brave’. She said ‘No, I want to be a role model’.’’
He said he also spoke to the woman when he was off-air last night and she requested her name be taken down from the website amid fears she could be in contempt of court.
[news.com.au, 2012]
This has further complicated matters. Hinch is now responsible for not only naming a convicted sex offender in contempt of court, but potentially also releasing this woman’s information against her will.
It’s the public versus the individual. Should Hinch be able to make these calls, just because he’s pledged to continue to name and shame sex offenders?
Read more: http://www.news.com.au/national/derryn-hinch-names-convicted-paedophile/story-e6frfkvr-1226317124520#ixzz1rzBBApNB
Christians, C.G. et al. (2005) (eds) ‘Ethical foundations and perspectives’, Media Ethics: Cases and Moral Reasoning, 7th Ed. Boston: Pearson, pp. 1 - 25.
Cohen, S. (2004) The Nature of Moral Reasoning. Oxford: Oxford University Press, pp. 57 - 72.
Hinch, D. (2011) ‘Name Them and Shame Them Rally’, The Human Headline 1 April 2011. [online] Available at: http://www.humanheadline.com.au/name-them-shame-them/name-them-shame-them-rally.html. [Accessed 28 March 2012]
Merrell , R. (2011) ‘The thin blue lines between justice and contempt ’, The Drum Opinion (Australian Broadcasting Corporation), 6 June 2011. [online] Available at: http://www.abc.net.au/unleashed/2747044.html. [Accessed 28 March 2012]
Pearson, M. and Polden, M. (2011) The Journalist’s Goal to Media Law 4th Ed. Sydney: Allen and Unwin
Staff Writers. (2012) ‘Sexual assault victim claims she didn’t give Hinch permission to identify her’, April 3 2012 on www.news.com.au. [online] Available at: http://www.news.com.au/national/derryn-hinch-names-convicted-paedophile/story-e6frfkvr-1226317124520#ixzz1rzBBApNB. [Accessed 14 April 2012]