The latest sex scandals on both sides of the Atlantic have rightly attracted widespread attention, but behind the scenes, the reporting of the allegations has called for some tricky judgments to be made.
Every reporter knows that as soon as it’s alleged that a person is the victim of a sexual offence, that person has an automatic lifelong entitlement to anonymity.
The main exception to this rule is that the victim may waive his/her right to anonymity, provided that the consent is in writing and the victim was not forced to give it under duress.
This is standard reporting law throughout the UK, and it’s such an ingrained principle that you might think it’s hardly worth writing about. But what’s been happening over the last month or so both here and in the US is worth thinking about.
It all started with the revelations about Harvey Weinstein, with new allegations being made against him and other Hollywood A-listers on an almost daily basis.
In the US, there is no automatic prohibition on identifying victims of sexual offences, though all reputable news publishers and broadcasters follow their own codes of practice by not identifying victims unless they consent.
With Weinstein, Kevin Spacey, and others, many of their alleged victims have been more than willing to speak out, and the US news outlets have duly identified them. From the UK legal perspective, that’s all fine as long as the publications remain within the jurisdiction of US law.
But of course, that’s not how the real world operates. Articles emanating from the Hollywood Reporter, the New York Times, or the Washington Post, rapidly end up being published across the globe.
So theoretically, these foreign publishers (or those British publishers who use their material) run the risk of breaking UK law if they cannot be certain that they have the alleged victim’s written consent to being identified.
But surely this is just legal theory, with publishers assuming little risk? After all, if the victim is prepared to be identified in the US, then it’s fair to assume there’s little danger of that person complaining about similar coverage on this side of the Atlantic.
That is almost certainly correct as a matter of practicality – despite anything UK law may say.
Meanwhile, our own Parliamentary sex scandal is moving along at a pretty fast pace, with new allegations being made as each day passes.
And with at least one MP’s alleged behaviour being investigated by the police, the reporter’s task is apparently straightforward: don’t identify the alleged victim of the alleged sexual offence, either directly or via jigsaw ID, without written consent.
But at the same time, reporters and editors may want to think carefully as they write about the latest revelations.
The last few days have seen various Ministers, Whips, and Honourable Members resign, be suspended, or be investigated by their own parties.
However, with the exception of the MP who is the subject of a police investigation, it’s not always clear whether it is being alleged that a sexual offence has been committed, or whether the allegation involves non-criminal sexual harassment, or similar.
Our legislation is clear; automatic anonymity only arises if the complaint involves the commission of a criminal offence. Non-criminal behaviour does not trigger anonymity for the complainant.
So the task for reporters and editors (and their lawyers) is to understand what, precisely, is being alleged.
And in this context, it’s far from easy to be sure where to draw the line in the absence of police involvement. There are so many grey areas, and deciding when non criminal sexual harassment has turned into a potential sexual offence, is sometimes far from easy.
Most reporters and their editors will want to proceed cautiously with this kind of reporting, and rightly so. After all, IPSO’s Editors’ Code requires regulated publishers to proceed with care when reporting circumstances such as these.
But it’s conceivable that as events unfold in Parliament and Westminster, it may not always be appropriate to anonymise the complainant in the absence of an allegation of criminality.
And if that moment ever comes, knowing where you stand under the law becomes rather important.