Not sure where I stand on this. I can see both sides. Figured it would be interesting to get others thoughts on it.
On the one hand violating a court order seems pretty straightforward as contempt of court. On the other hand it does seem a bit too far for a court to tell a victim they have to keep their mouth shut about their experience.
I think the judge’s order was unconstitutionally broad.
The judge may have the power to keep juvenile proceedings secret, assuming Kentucky law supports that concept, so he can certainly order the victim to not disclose what went on during the adjudication.
But to the extent that the order also prohibits the victim from disclosing what happened to her, I believe the order impermissibly infringes on her First Amendment rights.
So she can say, “I passed out at a party, John and Jim raped me and took pictures of it, and distributed them. And I think they got off easy in court for doing such a heinous thing.”
She can’t say, “I passed out at a party, John and Jim raped me and took pictures of it, and distributed them. And the judge gave them sixty days, all suspended.”
Of course, the proper way to challenge an overbroad order is by appeal, not by violating it. But this puts the onus on the court, in a way that’s not very publicity-friendly, so I can’t say she’s crazy for choosing this approach.
As usual Bricker is on the spot with a solid legal examination of the case. Care to comment personally on your opinion of the ethics involved rather than the strict legalities? I’m interested in what you have to say in that regard though I know it’s not usually your MO to do so.
In regards to the OP, I’m left with “both” for my answer. Apparently the Judge can order this sort of thing because the offenders are, (or were) juveniles at the time. OTHOH, I don’t see how that should limit the victim from speaking on a personal level about her experience or their crimes. To my mind that should only limit the public from finding or accessing the records of the court and police. Essentially the only source of further information about this would be the victim herself. If they don’t feel they are being fairly represented by her, they could always pursue a libel/slander case against her I suppose.
Wait, is she bound essentially the same way that an officer of the court would be bound? How is that possible? I could see where people voluntarily enter into negotiations in which silence is part of the deal, where they can choose to accept the terms or not. But given that we each have access to only one court system, I can’t see how that fact can be used to deprive a citizen of their First Amendment speech rights.
IIRC (and this is from a distant, vague recollection so no cite and I could well be wrong) there have been cases in the past where the reason for a contempt order was deemed improper but the contempt order stood nonetheless.
Not sure I made sense there but, in this case, it would be something like, “The court finds your First Amendment argument persuasive and it is beyond the scope of this court to prevent you from speaking about your experiences. You are still in contempt of court though.”
The reasoning, as I recall, was that the individual took it upon themselves to violate a court order rather than pursue a remedy in the courts as they should. The court does not like this so still finds the person in contempt even if the original order was in error.
Again, I could be totally misremembering so I guess I am really asking:
Even if the court agrees that it went too far in restraining her ability to talk about what happened to her can they still find her in contempt of court?
The second half of this still remains to be seen, based on the judge’s actions from this point forward. But the first part is right on. I don’t see how the court can order you to not talk about what happened to the people who molested you under the justice system. If you know, it’s part of your personal nightmare. And the court can tell you to bottle it up and let it eat away at you. No, that sucks to much to make any sense.
Because she was present for the closed hearing. That is, Kentucky law closes hearings for juveniles. As the victim, she is permitted to attend, but by doing so she becomes aware of confidential information; the judge is permitted to order her not to reveal it.
I wonder if the issue isn’t that she spoke, I’m sure she told people the boys did it before the trial. I wonder if it’s really the fact that she Twittered it, thus revealing the boys’ names to the public in general.
Just going by my gut, I can see that juveniles are afforded some protection of their identities during trial… but after a plea deal is reached? Is it common that, after conviction, the identities and sentence of juveniles would be confidential information?
Yes. In typical juvenile justice systems, there is no “conviction.” There is no trial. There is a hearing, in which the juvenile is a respondent, not a defendant, and the juvenile is found “responsible,” not guilty, of an act that would be criminal if committed by an adult.
I do not know if DAs make a habit of consulting victims about how the case should proceed but technically it is not the victim who prosecutes the accused. It is the state that is responsible for the prosecution and as such, in the end, up to the state to decide how to pursue the case. Maybe DAs talk to the victims to be nice (no idea) but I do not think they are required to.