Confidentiality And Sex Crimes Against Children

From the excellent and informative Weekly Update posting on the web page of the Law Society of Ontario

The applicant sought to be licensed as a lawyer and was referred for a good character hearing due to his past misconduct, which involved the sexual abuse of children, including his eldest daughter. The applicant brought a motion that he and his children be anonymized in the proceedings and that the details of his past misconduct be made not public, as the children were not yet aware of the misconduct (the eldest daughter had no memory of it) and learning of it in the context of his licensing application would cause them psychological harm. The Law Society was agreeable to anonymizing the children and other victims but not the applicant, arguing that: (a) his interest in avoiding publicity was not an important public interest; and (b) the claim of harm to the children was speculative. The panel, noting the special protection afforded to children under Canadian law, held that: (a) preventing collateral psychological harm to children is an important public interest; and (b) the risk of harm can be established, in the absence of empirical evidence, by applying reason and logic. The test from Sherman Estates, 2021 SCC 25 having been met, the panel considered the least restrictive means of minimizing the risk and held that anonymizing the children and the parents in combination with a publication ban on any identifying information would protect the children while leaving the important issues and findings on the good character hearing transparent and accessible to the public.

The decision is linked here.

I represented Bar Counsel in a not-dissimilar case involving sexual abuse of a child by a member of the District of Columbia Bar.

Over my objection, the Board on Professional Responsibility cloaked the proceedings in virtual secrecy concerning not only the identity of the victim but the essential facts of the crimes.

Why did the BPR show such solicitude to a convicted child molester?

Hint

At the time of the sexual abuse, Respondent’s law practice involved government contracts work with a prominent Washington law firm. The record is undisputed that Respondent served his clients well, including during the periods of sexual abuse.

This line from the BPR report made me physically ill as they sang the molester’s praises

At the Board, Respondent represented himself. The Board can scarcely imagine how difficult it must be for a member of the Bar to appear before a panel of peers and members of the public to discuss such conduct. Respondent could not have handled the situation with greater decency and dignity. His sincere understanding of the harm he has caused – to the victim, to his own future, and to persons who care about him – is very clear to the Board. What happened here is tragic for all concerned.

I had spent enough time dealing with him to have a markedly different view.

In my article on the D.C. disciplinary system, I tell this story (and that of another associate at the same prominent firm) in the section titled A Tale of Two Associates. (Mike Frisch)