Thursday, March 04, 2021

Naming in law and naming in contemporary history

Yesterday Ontario judge Anne Molloy convicted the Toronto van murderer who ran down and killed ten pedestrians on a Toronto street, in a judgment that recommends that his name not be used. The judge referred to him throughout as  "John Doe." Molloy argues that since the murderer's motive was fame, it was appropriate not to reward him with more fame. 

Today his name has been widely published in the media. So there is pushback to her recommendation.

 It's not a new issue. Years ago I blogged an item on the anniversary of the murder of female engineering students at the Université de Montréal in 1989, partly because I happened to be administering an exam to a history class the morning after the shooting and retain a vivid memory of the collective sense of shock and horror felt in the class. I got an email in response, urging me not to give the convicted murderer the celebrity he wanted. It seemed persuasive then; it still does.  

Today I see criminal law practitioners argue in the media that the courts' role is to hold people accountable, and accountable requires naming. It is also suggested that Molloy's decision will create precedent for people convicted of crimes to avoid accountablility by demanding the same treatment the van killer got. But surely declining to name is a choice, not an obligation.

Not naming comes up in legal history, too. Some years ago, when I wrote a history of a British Columbia court, I included detailed accounts of ten cases that illustrated how the court had worked over the decades. One, a fairly recent divorce case, illustrated how courts have come to deal with family property and support questions. It was only after the book was published that I had second thoughts about having used the divorcing parties' full names (as, indeed, my source, the published case report, did.) The still living individuals' names were not important to my story. I was only using their case as an example of evolving legal practice in family law. I could have anonymized them and spared them perhaps unwanted scrutiny of their particular marriage. 

Thinking about that, I learned about "anonymous citation," in which legal scholars writing about case law in legal journals and the like may refer to still-living parties as "A" and "B" or "John Doe" and "Jane Roe" to spare them unnecessary publicity. If I wrote another court history, I'd likely follow that trend wherever the circumstances seemed right. 

So lawyers are already exploring ways in which prudence and consideration can lead to withholding names -- not as censorship, not as a restriction of free speech, but as courtesy and sound judgment.  Writers of contemporary history, as well as journalists covering sensational crimes, may sometimes want to consider following that lead.

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