Wednesday, May 6, 2009

The injustice of asymmetrical anonymity when it comes to rape claims

We could opine endlessly on the inequity of asymmetrical anonymity when it comes to rape accusers and the men they accuse, but a recent case in the news illustrates the inequity far better than we could do in the abstract.

The name of a navy lieutenant charged with sexually assaulting a sailor is being splashed all over the news while his accuser's name is withheld. The evidence seems to suggest that the woman and the man, her superior officer, did have sex, but the accuser -- who retains her anonymity in the news -- claims it was forced on her.

Note that the accuser had a boyfriend on the same ship at the time of the incident. We know that a very common reason to falsely allege rape is to cover up an illicit sexual encounter from a loved one.

But wait, it gets more interesting -- this is from the news report:

Greg McCormack, [the accused man's] civilian defense attorney, tried to cast doubts on the evidence and build a case that the woman was untrustworthy.

He noted that when she was 15, she filed a false accusation of rape with police in Texas, where she grew up.

Asked about that, the woman said she feared she was pregnant and told her parents she had been raped so they wouldn't be mad. A few days later, the truth came out, and the daughter and mother went back to police to withdraw the report. No charges were filed, she said.

McCormack also noted the woman lied about where she'd gone when supervisors realized she wasn't on the ship. (She told them she'd gone to her car to get some medicine for cramps.)

She lied to NCIS agents in the first interview when they asked whether she had any civilian jobs, McCormack said. (The sailor worked as a waitress and an exotic dancer at a Norfolk bar.)

Let us put this in perspective: a woman who just four years ago had falsely cried rape to cover up an illicit sexual encounter, a woman who had been an exotic dancer and who lied to the NCIS about it, a woman who told at least one other lie in the course of this investigation -- that woman is afforded blanket anonymity for life regarding a case where she might have falsely cried rape under circumstances similar to her previous rape lie. None of that matters. Her identity is guarded by the news media with the same tenacity that Clark Kent protects Superman's for no reason other than the fact she alleges she was raped.

But a navy lieutenant's once-good name is splashed all over the news for the world to titillate to the details of his humiliation based on nothing more than the aforementioned woman's say so. It is fair to assume that no matter what happens in this case, even if smoking gun evidence is uncovered to reveal that her claim is a lie, his life has been tarnished and possibly destroyed beyond repair, and there will always be some people who will assume that "something must have happened." He will never, ever regain the good name he once had. He likely will have difficulty getting a job and entering into a long-time relationship. This claim will trail him for the rest of his life like a ghost.

And, ladies and gentlemen, that would be altogether fitting if he is, in fact, a rapist. But the claim might just be false.

That is fair . . . exactly how?

Writer Rene A. Henry recently nailed it with this astute observation: "One . . . has to question why, when media report a charge of rape or assault, the name of the accuser is withheld but the name of the accused is made public. The accused is treated contrary to due process and is automatically considered guilty until proved innocent. The reputation of the accused is immediately tarnished, if not destroyed." Link: FIGHTING BACK: Does the Media Have a Double Standard?

Here is what the brilliant Alan Dershowitz once said on the subject. His is an interesting take -- he looks at the other side of the question, whether rape accusers should enjoy anonymity. I am the last person to try to argue with Alan Dershowitz:

"People who have gone to the police and publicly invoked the criminal process and accused somebody of a serious crime such as rape must be identified," he said. "In this country there is no such thing and should not be such a thing as anonymous accusation. If your name is in court it is a logical extension that it should be printed in the media. How can you publish the name of the presumptively innocent accused but not the name of the accuser?"

Mr. Dershowitz continued: "Feminists cannot have it both ways. They have persuaded us that rape victims should not be singled out for special treatment. Yet that is what many of them want from news organizations."

I believe that a strong case can be made that men accused of rape should be anonymous until conviction. I have gone back and forth on whether rape accusers should be named by the news media, but I now agree with Professor Dershowitz as to them.

If the names of rape accusers were publicized, it is fair to assume that at least once in a while, some hapless male who previously was falsely accused would see that his accuser is back at it, crying rape with respect to yet another man or boy, and that male could come forward to assist the current victim in his defense.

As it currently stands, it is likely that many rape accusers previously falsely accused other males but that many, if not most, of these prior false accusations never come to light in the investigation of the current rape claim because accusers are afforded anonymity and the previous victims simply don't know that the women who victimized them are at it again. They can't come forward to assist if they don't know about the latest claims.

If we can save even a few innocent males from prison by releasing the names of rape accusers, then all the other rationales for anonymity of rape accusers must give way.

In addition, while eliminating anonymity might discourage some women from making actual rape claims, we suspect it would discourage even more women from making false rape claims.

So the only fair result is to name rape accusers in the news media but to withhold the names of men and boys accused of rape unless they are convicted.