In the past few months, disturbing allegations of sexual assault have been levelled against several men in powerful positions, both locally and internationally. Typically, the survivors have spoken out on social media and their stories have been picked up and reported in the print, broadcast and online media.
Although these stories are important and need to be told, one must also be aware of the legal framework that places limitations on how stories of sexual assault are reported. Here are a few things to keep in mind.
Reporting on the complaint
- There is no general statutory restriction on publishing allegations about a sexual offence before a formal charge has been laid against the accused. However, there are restrictions on identifying the complainant before a charge has been laid and identifying the accused after a charge has been laid.
- Once a specific person has been formally charged with a sexual offence, the Criminal Procedure Act bans the publication of any information relating to the offence at any stage before the accused has both appeared in court and pleaded to the charge.
The prohibition extends to the identities of the accused and the accuser. However, it is so broadly framed that it could be interpreted as a ban on publishing any story at all on an allegation of sexual assault during this time, regardless of whether the affected parties are named.
Once the accused has formally pleaded, the details of the story can be published. The wait could be a period of several months because there is usually a significant delay between the time a charge is laid and the time when the accused pleads, which happens at the commencement of the trial.
The prohibition is arguably unconstitutional because its scope is overbroad, it criminalises the publication of information that may already be in the public domain (for example, if the accuser has published the allegations on social media before laying a charge), and also because it does not contain any mechanism for journalists to obtain permission to publish.
Nevertheless, the prohibition reflects the law as it currently stands and it carries a penalty of up to three years in prison.
Reporting the identity of the complainant
- The Criminal Procedure Act prohibits identifying a complainant in a sexual offence case from the date on which the offence allegedly occurred until the accused has pleaded, unless permission is obtained from a magistrate to identify the complainant.
The effect of this is that the media (and members of the public) cannot name the complainant before a charge has been laid. Although this prohibition is designed to protect complainants in such cases, it raises similar concerns about constitutionality given that the complainant may already have placed the matter in the public domain themselves.
- The codes of conduct of the Broadcasting Complaints Commission of South Africa and the Press Council also prohibit identifying survivors of sexual assault without their consent. In the case of children, consent must be obtained from the child and their parents or legal guardians, and other factors such as the best interests of the child and the public interest in the story must also be considered.
Reporting the identity of the accused
- There is no statutory restriction on naming a person who is accused of sexual assault before they have been charged. Although there is no statutory restriction in place, journalists and members of the public must remember that they could be sued for defamation if they repeat (which includes retweeting and sharing material via social media) unverified allegations that a person is guilty of sexual assault.
- Once criminal charges have been laid, one has to be careful about the timing around naming the accused because of the provisions of the Criminal Procedure Act discussed above, which make it illegal to publish any information relating to the charge before the accused has both appeared in court and pleaded to the charge.
Okyerebea Ampofo-Anti is a partner in the dispute resolution department at Webber Wentzel and specialises in media law