Friday, May 4, 2012

What is the answer about anonymity for rape victims and the presumptively innocent accused of rape? We don't know . . . .

Attorney Wendy Murphy criticizes the student newspaper at Bridgewater State University, which recently published the identity of a woman who claims she was raped in 2008. The woman's identity was published only after she had publicly spoken about the rape at a rally held in connection with the school's “Take Back the Night.”  The rally was designed to encourage victims of sexual assault to speak up and not live in shame.

Organizers of the Take Back The Night rally, various fraternities, sororities, and student government members want the newspaper to take the article off its website and apologize to the woman. The student newspaper is defending its decision to print the woman's name on First Amendment grounds.

Reporting the woman's name wasn't necessary to tell the story the newspaper wanted to relate, and we suspect the woman didn't anticipate that her identity as a rape victim would be publicized beyond the supportive forum where she related it. On the other hand, it is our guess that the newspaper assumed the woman had de facto waived her anonymity by going public with the story and felt it was appropriate to name her.

The First Amendment doesn't require student newspapers to exercise good judgment or to insure its publication isn't in bad taste. Last November, for example, East Carolina's student newspaper splashed on its front page, above the fold, an unedited, full frontal nude photo of a 21-year-old man streaking at the school's football game the previous weekend. Sometimes it is appropriate to condemn a newspaper for acting in bad taste while still defending its right to do so.

But it is the issue of anonymity, in general, that is important. Wendy Murphy explained that "[v]ictims in sexual assault matters face unique burdens not experienced by other types of crime victims because the very nature of sexual violence is such that a public trial is certain to reveal things about the victim that are not only highly personal but protected by the Constitution.""Not naming victims in the press insulates them from the harm that would otherwise disproportionately affect their constitutional rights simply because they had the misfortune of being targeted for the most intimate of violent acts."

Ms. Murphy's assertions are difficult to refute. But, ironically, the same interests she discusses are shared by persons falsely accused of serious sex crimes. Rape is perhaps the most loathsome offense in the entire criminal law canon, universally considered worthy of the most severe societal censure and condemnation; in some cultures, rape is regarded as more offensive than murder. Because of the he said/she said nature of most rape claims, a false rape accusation is almost impossible to fully disprove, and even when falsely accused persons are cleared of rape charges, they often are tainted as the possible perpetrators of the most detestable crime known to mankind.  Our bloggers have reported the public scorn heaped upon many false rape victims.

So what is the answer about anonymity for (1) rape accusers and (2) the presumptively innocent accused of rape? We don't know. We do know that the issues don't lend themselves to easy answers and that the current state of the public discourse ignores significant interests that should be aired.

The interests of protecting the identities of rape victims are well known, and they are legitimate. Those interests need not be fully aired on this blog since they represent the status quo and are articulated in the policies of the American news media that shield the anonymity of anyone who claims to have been raped. This blog, on the other hand, is among the few forums devoted to giving voice to the wrongly accused, and they, too, have interests that deserve to be aired but too often aren't.

Prof. Alan Dershowitz has made a persuasive case against anonymity -- for anyone. Here's what he wrote about the Dominique Strauss-Kahn case: "The prosecution presented its case in public as if there were no doubt about the alleged victim’s credibility or the complete guilt of the alleged offender. In fact, one very important implication of the Strauss-Kahn case was this: the press is dead wrong not to publish the names of alleged rape victims. It is absolutely critical that rape be treated like any other crime of violence, that the names of the alleged victims be published along with the names of the alleged perpetrators, so that people who know the victim or know her reputation can come forward to provide relevant information. The whole manner in which this case was handled undercuts the presumption of innocence, and the same goes for many other cases like it. By withholding the name of the alleged victim while publishing perp photos of the alleged assailant, the press conveys a presumption of guilt. The next time I have to defend a case where there’s any chance of a perp walk, I’m going to federal court to demand an injunction against it."

Dershowitz previously said this on the subject: "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." Moreover: "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?"

Feminist Naomi Wolf  has many interesting arguments why rape accusers shouldn't be anonymous.  Among other things: "It is wrong – and sexist – to treat female sex-crime accusers as if they were children, and it is wrong to try anyone, male or female, in the court of public opinion on the basis of anonymous accusations. Anonymity for rape accusers is long overdue for retirement."

And there are legitimate arguments as to why persons accused of rape should not be named, at least until they are charged, or even convicted. Justice for rape victims does not depend on the public shaming and humiliation of the presumptively innocent.  Our bloggers have argued in previous posts it is likely that more women would come forward and report their rapes if the men they accused were anonymous.  That position bucks the common thinking on the subject, but it has a logic difficult to refute. When a woman accuses a male acquaintance of rape and he is publicly identified, it often isn't difficult to infer who the accuser is. It is reasonable to assume that most rape victims would prefer not to have their identities revealed by inference when they accuse an intimate acquaintance of rape.

Ms. Murphy, fraternities, sororities, and student leaders are bemoaning the fact that a woman who claims she was raped was stripped of her anonymity even though she publicly spoke about her ordeal at a rally. Such concerns are legitimate, and it is good to air them.

It is lamentable, however, that virtually no one bothers to voice concern that persons wrongly accused of serious sex crimes are also stripped of their anonymity. Their reputations are sometimes indelibly stained by the publicity.