Is The Australian Media Victim-Blaming Or Being Legally Cautious? We Asked A Lawyer.
The word "allegedly" isn't as helpful as you might think.
Australian media outlets are often criticised for how they cover violence against women and children.
Perpetrators and accused murderers are often portrayed as jilted lovers acting out of jealousy, or else missing from headlines altogether. Some coverage has focused on the love life, clothing choices, cultural background and alcohol consumption of the victim, which can have a devastating effect on their family and friends.
In December national broadsheet The Australian's opening paragraph on a story about a woman whose body was found frozen in her family's freezer described the victim as "strong", "aggressive" and having nagged her "quietly spoken" husband.
This week Brisbane woman Hannah Clarke, 31, died in hospital after her estranged husband Rowan Baxter, 42, doused her in petrol. Their three children Aaliyah, 6, Laianah, 4 and Trey, 3 all burned to death in the car after it burst into flames. Police said Baxter died on the footpath next to the car from self-inflicted wounds.
Fox Sports Australia ran the headline: "Ex-NRL player Rowan Baxter dies alongside his three kids, estranged wife in Brisbane car fire tragedy". The headline was later changed: "Wife dies hours after her children were killed in car inferno lit by league player father".
The Daily Mail's headline was: "Ex-footy star who died in burning car showered kids with love". CNN's headline was: "Former rugby league player Rowan Baxter, wife and children dead after Brisbane car fire".
The criticism was not across the board — several outlets, including many newspaper front pages, were unequivocal in their condemnation.
Some journalists pointed out that reporters aren't above the law and coverage of any crime needed to take legal precautions.
BuzzFeed News asked MinterEllison media lawyer Dean Levitan questions about what legal considerations reporters had to take into account when reporting on crime. He spoke generally, not about the Baxter case specifically.
What kind of legal risks do a journalist and a publication face for reporting on these crimes?
"There are really two categories of risk and there is an interplay between them," Levitan said. "One is the defamation risk, the risk of defaming the alleged murderer, albeit highly unlikely, and the other risk is the one relating to prejudicing a criminal trial."
Why does the media say a woman has "died" when we know she was obviously killed? Is there a legal reason?
"I know that it's frustrating and I don't think there is a very good answer to that, other than the reporter applying an extreme degree of caution," he said. "There is no legal risk with that other than if you haven't disqualified all possible suspects."
Levitan said one issue with writing that someone is murdered is that you need to make clear who didn't murder them.
"Unless you disqualify all potential suspects in your reporting and only narrow in on one person then you leave open an inference that other people could be guilty of the murder," he said. "So, for example, if you say a woman has been killed in a brutal fire and you don't go on to later say later in the story that it was the husband who is believed to have done it, you leave open the possibility that it could be interpreted by readers that it was a mother or sister or scorned lover."
Either you must name the person, which brings its own risks, he said, or leave open the inference that it is someone else.
But if I know something is true why can't I just publish it?
"I tell people to have sympathy for the reporters who are accountable not just to their editors, but to lawyers who regularly have to modify or amend something even when the lawyer and the reporter knows something is true," he said. "The question is not whether the lawyer or journalist think it is true, the question from a legal standpoint is in a worst case scenario, if this person sues, are we able to prove this is true with the resources and information we have?"
The choice, Levitan said, is often between telling the truth and wearing the outcome or not telling the truth to avoid potential risk: "The law doesn't protect truth telling to the degree that it should."
Journalists often use the world "allegedly" before stating the crime committed, which can frustrate readers. Is it because they don't believe the victim or is there a legal reason?
"I think journalists sometimes erroneously believe [the world allegedly] gives them a defence as if 'I didn't say it happened, I said it allegedly happened'," Levitan said.
Someone might be less likely to sue if a journalist uses the word allegedly because it softens the language of the article, but unless the accusation is paired with a sentence that genuinely "casts doubt" about a person's guilt, then a court will probably find that an inference of guilt is conveyed, Levitan said.
In short: "allegedly" won't save you if the article as a whole otherwise suggests the person is guilty.
So, for instance, unless I have actual CCTV footage of someone committing the crime, I shouldn't say it happened?
"If you can't positively identify the person in the CCTV footage is the person you're about to name then you can't speak to the underlying fact," he said.
"If you say that this person has allegedly committed a hit and run what you're really saying is this person has committed a hit and run and what the courts are looking at [in a defamation case] is 'have you conveyed to readers that the person has in fact done it?'"
At what point is the media allowed to say someone has murdered another person without legal risk?
"I think most people would agree that once a person is convicted you can call them a murderer but from a legal standpoint I would recommend you call them a convicted murder. If this person sues you, which is obviously very unlikely because they're likely in jail for life, you have to try and prove the truth that they are a murderer."
If someone is accused of murder or violent assault and the media writes about their character or previous criminal history, can that jeopardise the impending trial?
Yes. But it can depend on timing, Levitan said.
"Let's say there is a criminal trial coming up in four weeks and you publish something about the alleged murderer's history of assaulting women, the prosecutors or the court might actually immediately bring contempt proceedings against you or your publication for prejudicing the trial," he said.
A judge may dismiss the case or give "really strong" directions to a jury about what information they can and can't consider.
In what other ways could media coverage impact the course of justice in these cases?
"Media reporting might have the effect of influencing or affecting potential witnesses," he said. "So sometimes witnesses don't want to come forward or don't want to be involved in a trial if they know there is going to be heavy scrutiny on them. If there is a media report which is favourable to the accused then it might just make a witness say 'Why would I get involved in this?'"
In the case of a murder-suicide, can publishers defame the murderer?
"In Australian defamation law, other than in Tasmania, a dead person can't bring proceedings and nor can the surviving relatives of the dead," he said.
For help or information on domestic violence, visit 1800RESPECT or call them on 1800 737 732. The Men’s Referral Service is aimed at men who need help to stop violent or controlling behaviour, but it also supports victims and families. You can call on 1300 766 491.