Friday, March 13, 2009

Press should not exercise 'timidity and self censorship' when it comes to naming accused rapists (but should when it comes to naming rape accusers)

The Arkansas Supreme Court upheld a newspaper's right to name an alleged rapist based on information found in police records -- even though it turned out the man was not a rapist. The court affirmed the "fair report privilege" which allows newspapers to base reports on police records without fear of liability. Justice Paul E. Danielson noted the First Amendment expressly guards the press from "timidity and self-censorship" by the press.

Did you get that? A newspaper is Constitutionally protected from civil liability when it splashes the name of an accused rapist all over its front page for all the world to titillate to his humiliation even if, as happens a lot, it turns out the report was wrong and the man is not a rapist. The law has no concern whatsoever for the destruction of a man's good name attendant to such reporting.
This, of course, is in stark contrast to the "timidity and self-censorship" exercised by the press when it comes to naming rape accusers.

And let's be clear. Timidity and self-censorship are sometimes a good thing. Rape accusers should not be named. Withholding the names of rape accusers is sound public policy. Publishing the names of persons accused of rape is reckless, unnecessary, and an affront to human decency. Given the harm inflicted on accused rapists, publishing their names creates security risks and threatens their personal well-being.

Neither the accused nor the accuser should be named unless and until a conviction is obtained -- either for rape or false reporting.

We have made great strides is implementing laws and policies to make it easier for women to report rape. These include anonymity; extensive counseling paid for by tax and tuition monies; heightened sensitivity when being interviewed by police; exemption for accusers from taking polygraphs; the accuser's right to have rape kits preserved for years at taxpayer expense while she mulls over whether to press charges against a man or boy; exemption for accusers from underage drinking charges on college campuses for accusers; and special evidentiary rules at trial to jack up rape convictions.

These are largely good things, but they carry with them a heavy price: they enhance the likelihood of false rape claims. If we, as a society, countenance measures that make false claims more likely, it is a moral imperative that we provide protections to insure the safety of the presumed innocent from physical, mental and reputational harm. One such crucial protection is anonymity.