Abstract
The identity of all minors is protected during court proceedings. This protection of non-disclosure of identities is available to witnesses, victims and offenders, but expires when they turn 18. Should they desire the further protection of identity, the only option is to approach the courts for the necessary relief. This essay examines whether the identity of these persons should be released at 18 years or whether they are entitled to further anonymity. Another issue is whether a convicted minor criminal should qualify for the same protection as victims and witnesses.
Two different cases, one of a victim and the other of a convicted criminal, are analysed. While both persons are now older than 18 years, the one's current identity is protected by a court order, while the other's identity has been published in the media on various occasions. Zephany Nurse was kidnapped when she was a 3-day-old baby and her kidnappers had her registered under a different name, the current name by which she is known. Zephany is the name given to her at birth by her biological parents, but it is her assumed name given to her by her kidnappers which she has requested the court not to reveal. In terms of a court order the media undertook not to disclose Zephany’s current name.
However, the identity of the Griquatown son who killed his family did not receive the same protection and his name was revealed by the press when he turned 18. In 2012, as a minor, he committed the murders on his family’s farm, was convicted on charges of murder, rape and obstructing the ends of justice, and was sentenced to 20 years’ imprisonment. Although his identity was protected throughout the trial, it was revealed during sentencing proceedings when he turned 18. Should the identity of offenders like him be withheld at the age of 18 years or not?
Various parts of South African legislation protect the identity of minors. It includes provisions in the Criminal Procedure Act 51 of 1977 and the Child Justice Act 75 of 2008 which protect the identity of minor witnesses, victims and offenders. This protection allows a minor the opportunity to carry on with his or her life while the case in court is still pending. However, there is no provision that the identity of a person should be protected after he or she reaches 18 years. At 18 years the details of such a minor may be disclosed in the media and distributed. The South African legislature has left open an opportunity for 18-year-olds, since section 170 of the Criminal Procedure Act specifically states that it protects minors, but they need to be under the biological age of 18 years. It states that protection must also be extended to 18-year-olds who are not of the mental age of 18.
An English case in which two convicted minor offenders' identities have been changed is also referred to. It was feared that the family and friends of the murdered victim could possibly take the law into their own hands and cause harm to the offenders. One of the reasons proffered for this fear was the fact that the media had a negative influence on the emotional development of these 18-year-olds. It was held that it cannot be expected of such persons to lead a normal life if their identities are not protected and if the media are given carte blanche to publicise everything about their daily lives.
Although a right to freedom of speech exists and the media should be allowed to report newsworthy events it cannot be done to the detriment of particular persons. Minors and even 18-year-olds are not all emotionally developed and not all of them can endure the stigma and attention that go with being in the public eye. If it is proven that the possible wide media coverage can have a detrimental effect on a person, such a person should be protected from the media. There is a risk that the disclosure of the identity of minors when they reach 18 could hamper their psychological development. In addition to suffering emotionally, there is always the possibility that the victim’s family may hurt the offender when the latter is known to the victim’s family. It is proposed that the courts should protect the identity of children when they reach 18 years of age. The right to life and not to be subjected to cruel and inhuman punishment should enjoy preference over the media's right to publish information about the person. Attempts should be made at all times to ensure that the youth's identity is protected in cases where it is extremely dangerous to publish any information about the youth and where there may be future emotional damage for such a youth.
There are number of factors that the courts should take into account when they adjudicate on matters like this. They should establish the emotional age of the person and not take only the biological age into consideration. Some people reach the biological age of 18 years but are not emotionally or psychologically 18 years old. This protection should be extended to 18-year-olds and older people who have not reached the mental age of 18 years. Their identities should be protected despite the fact that they have reached the biological age of 18 years.
Minors appear in our courts on a daily basis. Not all of them will qualify for protection of their identities when they turn 18. Some will appear on minor offences and their cases will in all likelihood not reach the front pages of newspapers. Their cases will be quickly forgotten. It is submitted that only witnesses, victims and offenders who are involved in cases which are widely publicised by the media should get protection. However, they would have to show that it is because of the wide publicity that their case is receiving that their lives are in danger or that they could suffer emotionally if their names are divulged. In the case of a minor offender the onus should be on the defence to prove that these grounds are present and in the case of minor witnesses and victims the onus should be on the state. The court will have to decide whether the applicant's identity at the attainment of 18 years should be protected by a court order.
The disclosure of the identities of minor witnesses, victims and offenders on their attaining the age of 18 is a sensitive issue that must be handled with respect, privacy and care. The courts daily hear cases where the media want access to a case where a minor is involved. Courts are under great pressure to protect the rights of under-age youths, while they also have to consider the rights of the media. Witnesses and victims such as Zephany Nurse should be afforded an opportunity to continue with their lives without the threat of media publicity. If a person such as the Griquatown boy is convicted of a crime, he must be punished. But this does not mean that such a person should walk around with the mark of Cain for the rest of his life. If he has paid his debt and his sentence has been served, he has certainly earned the right to be treated as a normal citizen. If the disclosure of identities like his would result in potential life hazards, loss of life and emotional damage, the identities should rather not be revealed. The legislature is therefore requested to pay urgent attention to this issue.
Keywords: disclosure; emotional damage; Griquatown boy; identity of released minors; media coverage; non-disclosure of minor’s identity; protection; publicity; Zephany Nurse; 18-year old