The weighing in of John Key on the "prominent entertainer" case has certainly ramped up name suppression as an issue in the wake of the Law Commission report on the topic. But what exactly should we take from his observation that the fact he was told the man's name shows suppression orders don't work?
Mr Key said he agreed with Justice Minister Simon Power about the need to stop the emerging "special class" of high-profile people using their status to get name suppression.
"As a general rule, transparency is good," the PM said.
It was unfortunate that high-profile people got extra attention at court, but "that's what comes with it".
The man involved pleaded guilty to a charge of "performing an indecent act with intent to insult", and was discharged without conviction and granted permanent name suppression. If you haven't heard that charge before, you're not alone – either no one is ever charged with it, or, more likely, it is never regarded as newsworthy in the media.
This is not the case here, obviously – and it would not have been the case had a conviction been recorded and name suppression not granted. It would still have been all over the papers, not because of the gravity of the offence, but because celebrity sells newspapers.
Finlay Macdonald explored that theme in the Sunday Star Times:
Justice Minister Simon Power seems to be courting favour by agreeing, no doubt mindful of popular distaste for perceived "celebrity justice" and the not unrelated desire to "name and shame" – a ritual accurately dubbed "mass mediated humiliation".
Yet the media are the very ones who create such a special class in the first place, and there's something a little disingenuous about stoking society's celebrity obsession on the one hand while demanding celebrities receive no special treatment on the other. One might even call it hypocritical.
You can call it the price of fame, but surely the price should be relative to the alleged crime. As the judge in the "prominent entertainer" case noted, the offending was at the "medium to low level". The offence wasn't trivial, but in the context of the horrors the courts routinely deal with, it's hard to argue it merited more coverage than a far more serious assault by a nonentity. Unfortunately, in the economy of the newsroom, celebrity plus allegations of a sexual nature plus quotations from evidence such as "kiss my balls" equals headlines, sales and ratings.
Judge Eddie Paul was convinced by evidence that such a circus would have damaged the man's career in a way that was out of proportion to the actual offence. He presumably also took into account that the defendant had entered an early guilty plea, paid reparations and offered to attend a restorative justice meeting.
But there's obviously a sense in which the suppression has been counterproductive. The actual, momentary offence was committed in a setting where the man appears to have had cause to believe he was getting a consensual blow job from the complainant's friends, who had accompanied him into an alley at 3.30am. Clearly, it was gross and drunken, and shocking and unpleasant for the victim. Yet I've seen it described online as the commission of multiple sex offences against a 16 year-old. The Herald reporters' ongoing lurid language competition has presumably had a part to play here.
Ironically, had he actually been named, the man would have been guaranteed a sympathetic run from the same media organisations who have been pursuing him -- in exchange for an interview. The Sunday Star Times was, for example, only too happy to softball Clint Rickards in exchange for pictures with his daughter. Such is the trade of celebrity value. The moral line can easily be moved to suit.
Something similar came up in a discussion with a colleague last week about the 2005 case of the All Black granted a discharge and permanent suppression on a charge of assaulting his pregnant partner. My colleague insisted that the man had knocked his partner to the ground and dragged her back to their house by her hair.
Judge Philip Recordon said the player had assaulted his five-months pregnant wife on the night of October 23.
It happened after "some issues" at the couple's West Auckland home. The player's wife walked off lightly dressed intending to go to her mother's house.
He went to stop her, there was a struggle and he then tried dragging her home.
Clearly, the man should have kept his damn hands off his wife, and an assault charge was appropriate. But you can still read on internet forums that the man "beat" and "pounded on" his wife. Michael Laws, even then showing his airy contempt for fact, wrote in a column that the man had "cuffed the wife". There was all manner of anger over "celebrity justice".
The Sensible Sentencing Trust's Peter Jenkins later weighed in with this:
Some people never learn... name suppression was recently imposed by Judge Philip Recordon in the case of an All Black player who had assaulted his then pregnant wife. This of course has created widespread interest in the case. And, as was pretty much inevitable... the offender's name turned up on an internet site based in the UK, demonstrating once more the utter futility of name suppression except where instigated by the victim.
Can you spot the mistake there? The suppression order in that case was instigated by the victim. Even that should not automatically be an end to the story – women can easily be forced by their abusers to protect them, and I discussed what I'd written at the time with a couple of people before becoming part of the "It's Not OK" campaign. But at some point, we have to trust a judge – an experienced, respected Family Court judge not known as a soft touch – to listen to submissions and make a decision on that.
Jenkins' next paragraph is this:
The name suppression order has in this case been rather counter-productive for the person concerned, as apparently the actual assault was of an extremely trivial nature. Had he simply let the full truth come out nobody would have been particularly interested, and the whole matter would have been dismissed and forgotten about within days. As it is, the name suppression has generated controversy and much discussion - along with speculation about which All Black did it. As a result the reputation of all the other current All Blacks - who are innocent of any wrongdoing - has also been besmirched, as people not only do not know who did it, but also have not been told the true gravity or otherwise of the offence. Here indeed is a situation where much less harm would have been done had the truth been revealed.
Perhaps he's right. After all, Sitiveni Sivivatu was convicted of a more serious assault on his wife two years ago – he did actually hit her – and, although he too received a discharge, we've largely forgotten that. But it's the name suppression, granted at the strong request of the victim, that keeps the earlier case in the news.
Nonetheless, I wonder if I'm alone in feeling uneasy at removing one element of judicial discretion and placing it in the hands of people who need to sell papers. As I wrote in The Listener:
The Herald on Sunday also devoted a stinging editorial to the decision, and was after no less than a confessional. It cited Australian cricket captain Ricky Ponting’s action after a drunken incident six years ago in which he “publicly confessed to an alcohol problem and took personal responsibility”, noting, in what made it sound oddly like a career move, that “Ricky Ponting now leads one of the best sports teams in the world”.
And, truly, this is the other option: the professional, PR-driven confessional, with a tearful press conference (the victim, obviously, to be in attendance) and perhaps an exclusive interview with one or two media organisations. One does not have to be unduly cynical to see a degree of self-interest in promoting this as the proper course of events, rather than allowing the couple to privately repair their relationship with the aid of counselling and get on with raising their new baby. There has been no indication that the victim desired the public route. Who would?
But that would be to assume it was about the victim in the first place.
Which is all a very long way of getting to the fact that we're discussing name suppression, and the Law Commission's recent report on Media7 this week, With Jock Anderson, and Gary Gotleib.
We'll also be looking at the wonderful world of video gaming, with Gerard Campbell of The Press, and Real Groove new reveiewer, David Dallas.
If you'd like to come along we'd need you in the building between 5pm and 5.30 and have you away by 7. Hit "Reply" and let me know.
And, finally: A DISCUSSION ABOUT NAME SUPPRESSION IS NOT AN INVITATION OR EXCUSE TO BREACH SUCH SUPPRESSION. IF YOU VALUE THIS WEBSITE, PLEASE, PLEASE, PLEASE DO NOT BREACH AN ORDER OR TRY AND BE CLEVER IN A WAY THAT MIGHT LEAD TO A NAME BEING DISCOVERED.