Naming rape suspects may draw criminal charges for journalists under Northern Ireland privacy law

Bernard Goldbach via Flickr CC BY 2.0

In Northern Ireland, it's a crime for a journalist to identify a rape suspect.

The relevant provision of the country's Justice (Sexual Offences and Trafficking Victims) Act 2022. Attorney Fergal McGoldrick of Carson McDowell in Belfast detailed the law for The International Forum for Responsible Media Blog in October 2023, just after the law took effect.

The law applies to a range of sexual offenses including rape. The prohibition expires upon an arrest warrant, criminal charge, or indictment. If prosecution does not expire the prohibition on identification, it remains in force until 25 years after the death of the suspect. The act amended preexisting privacy law to afford comparable anonymity to victims.

I have deep experience with this issue, and it is fraught. Despite my strong preference for transparency in government, especially in policing, the law has merit.

I was a university newspaper editor back in ye olden days of paper and ink. My newspaper reported vigorously on accusations of sexual assault against a student at our university by a student at a nearby university. The accusations and ensuing criminal investigation gripped the campus.

We learned the identity of both suspect and accuser. We reported the former and concealed the latter. Discussing the matter as an editorial board, we were uncomfortable with this disparity. Having the suspect be a member of our own community and the accuser an outsider amplified our sensitivity to a seeming inequity. We did take measures to minimize use of the suspect's name in the reporting.

These were the journalistic norms of our time. Naming the accuser was unthinkable. This was the era of "the blue dot woman," later identified as Patricia Bowman (e.g., Seattle Times). The nation was enthralled by her allegation of rape against American royalty, William Kennedy Smith. In the 1991 televised trial, Bowman, a witness in court, was clumsily concealed by a floating blue dot, the anonymizing technology of the time.

Smith was acquitted. The case was a blockbuster not only for TV news, but for journalism, raising a goldmine of legal and ethical issues around criminal justice reporting and cameras in the courtroom.

There was no anonymity for Smith. I went to a Society of Professional Journalists (SPJ) conference around this time, and the issues were discussed in a huge plenary session in a ballroom. The crowd exuded self-loathing for the trauma journalism itself had piled on Bowman. Objectivity be damned, many speakers beat the drums for the pillorying of the acquitted Smith.

The calculation in journalism ethics with regard to Smith, and thus to my editorial board, was that police accountability, knowing whom is being investigated, charged, or detained, and public security, alerting the public to a possible threat, or eliciting from the public exonerating evidence, all outweighed the risk of reputational harm that reporting might cause to the accused. Moreover, ethicists of the time reasoned, it would be paternalistic to assume that the public doesn't understand the difference between a person accused and a person convicted.

Then, in my campus case, the grand jury refused to indict. Our reporting uncovered evidence that the accusation might have been exaggerated or fabricated.

Our editorial hearts sank. Had we protected the wrong person?

My co-editor and I discussed the case countless times in the years that followed. We agonized. It pains me still today. Thirty years later, I find myself still retracing the problem, second-guessing my choices. It's like a choose-your-own-adventure where you feel like you're making the right choice each time you turn the pages, yet your steps lead you inevitably to doom.

Idealistically committed as we were at that age to freedom-of-information absolutism, we were inclined to the anti-paternalistic argument and reasoned that probably we should have named everyone from the start and let the public sort it out.

In our defense, a prior and more absolutist generation of norms in journalism ethics prevailed at the time. I was there at SPJ in the following years as leading scholars worked out a new set of norms, still around today, that accepts the reality of competing priorities and evinces more flexible guidance, such as, "minimize harm." Absolutism yielded to nuance. Meanwhile, the internet became a part of our lives, and both publication and privacy were revolutionized.

So in our present age, maybe the better rule is the Northern Ireland rule: anonymize both sides from the start. 

I recognize that there is a difference in a free society between an ethical norm, by which persons decide not to publish, and a legal norm, which institutes a prior restraint. I do find the Northern Ireland rule troublesomely draconian. The law would run headlong into the First Amendment in the United States. Certainly, I am not prepared to lend my support to the imprisonment of journalists.

Yet the problem with the leave-it-to-ethics approach is that we no longer live in a world in which mass media equate to responsible journalism. From where we sit in the internet era, immersed in the streaming media of our echo chambers, the SPJ Code of Ethics looks ever more a relic hallowed by a moribund belief system.

In Europe, the sophisticated privacy-protective regime of the General Data Protection Regulation (GDPR) is more supportive than the U.S. First Amendment of the Northern Ireland approach. The UK continues to adhere to the GDPR regime since Brexit. The GDPR reflects the recognition in European law of privacy and data protection as human rights, to be held in balance with the freedoms of speech and press. Precisely this balance was at issue in 2022, in Bloomberg LP v. ZXC, in which the UK Supreme Court concluded that Bloomberg media were obligated to consider a suspect's privacy rights before publishing even an official record naming him in a criminal investigation.

McGoldrick wrote "that since Bloomberg most media organisations have, save in exceptional circumstances, elected not to identify suspects pre-charge, thus affording editors the discretion to identify a suspect, if such identification is in the public interest."

Maybe the world isn't the worse for it.

Per 'modern ethical standards,' Mass. museum surrenders $5m bronze for repatriation to Turkey

Portrait of  Lady (AD 160-180)

Public domain/Daderot via Wikimedia Commons

A story of art crime touched Massachusetts early in September, as the Worcester Art Museum let go of a bronze bust of estimated $5m worth for repatriation to Turkey.

The museum purchased Portrait of a Lady (A Daughter of Marcus Aurelius?) in 1966 from Robert E. Hecht, an antiquities dealer. If that name is familiar to American easterners, yes, Hecht was a descendant of the Hechts, 19th century Jewish immigrants from Germany who started a department store chain in Baltimore, Md., my hometown, in 1857. What became "Hecht's" had 80 or more stores in the mid-Atlantic region. When I was a kid, my maternal grandmother loved to peruse the goods at what she still called "Hecht Brothers." The company was swallowed by Macy's in 2006.

Robert Hecht had a checkered career as an antiquities dealer based in Paris. He died in 2012 at age 92. In his obituary, the N.Y. Times described Hecht as "an American expatriate antiquities dealer who skipped in and out of trouble for much of his career, weathering accusations that he trafficked in illicit artifacts." Hecht denied ever having handled stolen goods knowingly. Late in life, he was charged with trafficking in Italy, but the Italian court ruled that the statute of limitations had run.

Hecht Co., Hyattsville, Md., 1959
Library of Congress

Revelation of Portrait's illicit provenance came to the Worcester Art Museum from the office of Manhattan District Attorney Alvin L. Bragg, Jr. And if that name sounds familiar, yes, he's the one on TV charging former President Donald Trump with falsifying business records—for my money, charges of a nature that should have been pursued decades ago and always should have been the people's focus, more than recent, politically charged allegations related to the election in Georgia or insurrection in D.C.

When not on TV for a press conference about Trump charges, Bragg has become famous in the art world for his aggressive campaign to repatriate stolen works. Portrait is but one entry in an extraordinary catalog. A recent press release, for example, announced the return of Nazi-looted art to families of Holocaust victims. The work of the Antiquities Trafficking Unit is impressive, though the D.A.'s press releases read like a vanity project. Must every headline begin with "D.A. Bragg"?

I was keen to see what kind of legal documents the D.A. would file in Massachusetts to take possession of stolen antiquities. But there are no filings that I have found. The Worcester Art Museum "cooperated with the investigation" according to its press release and surrendered Portrait voluntarily.

Renaissance Court, Worcester Art Museum, 2021

Peter E via Flickr CC BY-NC-SA 2.0

The museum not only cooperated, but the press release doth protest too much, methinks, to locate the museum on the moral high ground. Upon purchase of Portrait in 1966, the museum "was provided with limited information about the object's history," the press release said. The D.A. "provided new information" in 2023. "The Museum had never previously received a claim or learned of any defect in ownership."

Colgate art history professor Elizabeth Marlowe doesn't buy it. A student of Bubon, the ancient Roman capital of Lycia, where the Bronze was found in Turkey, Marlowe told WGBH that the museum in 1966 "would have known ... that Hecht was 'a totally shady character'" who had been banned from Turkey, and that the Roman object came from Turkey. Professor of art crime at the John Jay College of Criminal Justice Erin Thompson told WGBH that the acquisition was "like Pablo Escobar giving you a big pile of white powder and claiming you had no suspicion it could be drugs."

Benin Bronze of a Portuguese soldier
at the National Museum of Nigeria, Lagos, 2022.
RJ Peltz-Steele CC BY-NC-SA 4.0

Notwithstanding its protestations, the museum acknowledged that "greater diligence" is brought to bear on acquisition today. Director Matthias Waschek said in the press release, "The ethical standards applicable to museums are much changed since the 1960s, and the Museum is committed to managing its collection consistent[ly] with modern ethical standards."

That statement rings true, and I don't blame the museum. To the contrary, current ethical standards are still in flux, and museums are caught in the middle. John Oliver lambasted museums in 2022. While I loved the Oliver segment and agree with his pro-repatriation stance in principle, I find the reality more complicated.

Oliver correctly recognized that statements from western institutions fretting about the security of antiquities if returned to their home countries feel cringeworthily patronizing and colonialist. Oliver highlighted the case of the Benin Bronzes. Nigeria has demanded that the British Museum return more than 900 bronze sculptures the British Empire looted from the Nigerian Kingdom of Benin in today's Edo State (not to be confused with the country of Benin). When I visited Nigeria in 2022, I saw replicas of missing pieces. I met Nigerian people who clearly felt a present and keen sense of injury in the absence of cherished artifacts that define tribal history, culture, and identity. Nigerians should be able to see and experience their own history in museums, just like people in Britain and America. Yet the vast majority of Nigerians will never have the resources to visit the British Museum.

Me and an oversized jollof rice pot at the National Museum, Lagos, 2022.
Learn more at the Kitchen Butterfly.
RJ Peltz-Steele CC BY-NC-SA 4.0

At the same time, I watched in horror at the destruction of the Buddhas of Bamiyan in 2001 and the sacking of the Cairo museum in 2013, the latter of which I visited in the 20-aughts. The Antiques Coalition documents devastating losses in the 2010s at museums in Egypt, Iraq, Syria, Mali, and Yemen. Say what you will about western imperialism, and there's plenty to say, museum sackings are much less common in London and D.C. When asked by a mate of mine how Nigeria would safeguard the bronzes—the country is in civil war in the north—a museum guide said that the items should be returned along with financial support to build secure facilities. OK. But already, then, the matter becomes more complicated, revealing that there's a legitimate debate to be had about how and where we care for the world's cultural heritage.

Founded in 1896, the Worcester Art Museum has plenty to see. The property houses a 12th-century French Benedictine priory, rebuilt stone by stone in 1933. The museum's 38,000-item collection includes more than 2,000 armor pieces, acquired only in 2013 and featured in rotating displays. A special exhibition from October to March, "Freedom to Say What I Please," will feature the multimedia art of activist, artist, and author Faith Ringgold.

Court: UK hospital's mishandling of corpse after suspicious death violated human rights convention

St. James's Hospital is among those managed by the Leeds group

(image by CommsLTHT 2020 CC BY-SA 4.0).

From the eastern shore of the pond comes an unusual spin on the tort of mishandling a corpse.

The usual mishandling case invokes the longstanding common law exception to the rule against recovery in negligence for emotional distress in the absence of physical injury to person or property.  There was more at stake in this case, as The Guardian explained:

The family of a woman whom they suspect was killed has won a lawsuit against a health trust that allowed her body to decompose to the point that experts were unable to rule out third-party involvement in the death ....

The court ruled that the Leeds, England, hospital violated Article 8 of the European Convention of Human Rights, on the right to respect for private and family life.

The case is Brennan v. Leeds Teaching Hospitals NHS Trust, per High Court Judge Andrew Saffman.  I cannot locate the opinion online.  Besides The Guardian, there is more coverage at the Yorkshire Evening Post and Wharfedale Observer.  Hat tip to Professor Steve Hedley's Private Law Theory.  See also Professor Eugene Volokh's compelling 2019 missive on "the tort of loss of sepulcher."