A few days ago, Jeralyn at TalkLeft wrote:
Tomorrow we will learn the names of the Duke lacrosse players accused of criminal activity in the alleged rape case.
Question: When their names are released, shouldn’t the accuser’s be as well? Charges are merely allegations, they are not proof. Why should the accused’s name be public but not the accuser’s?
I can imagine criminal cases in which there’s a genuine public interest in knowing the name of the accused before the trial is over (for instance, if the accused criminal is a politician). But in general, I don’t think the names or faces of the accuser or of the accused should be made public in criminal cases.
I believe that “Mary Doe” (the accuser in the Duke rape case) is telling the truth about being raped. But I might be mistaken about that; and even if I’m right, it’s still possible that these particular two men are innocent.
Now, obviously, some suffering is an inevitable result of being arrested. But having your names and images broadcast on network news is not inevitable; it’s a result of an irresponsible decision make by the networks. If they are found guilty, then the harm done by deferring broadcasting their names and faces until the trial is over is not very great; but if they are innocent, then the harm done to them by the media is both avoidable and significant. So the media should hold off until the trial is over.
As for Jeralyn’s argument in favor of reporting the accuser’s name, it’s nonsense from top to bottom. I suspect that Jeralyn’s argument here is flavored by her not-very-hidden belief that Mary Doe is a liar and a false accuser. But just as it’s wrong to use the media to punish these two men before they’ve actually been found guilty, it would be wrong to use the media to punish Mary Doe for false accusations when she hasn’t been tried and found guilty for that crime.
Furthermore, broadcasting Mary Doe’s face and real name on network news would not mitigate any unjust suffering caused to the two accused rapists, even if they are innocent. This is not a case where two wrongs make a right.
Jeralyn also writes:
If we want people to recognize that rape is a crime of violence, it is not about sex, and are serious about trying to remove the shame and stigma associated with rape, shouldn’t we treat potential rape victims the same as stabbing and shooting victims — whose names are routinely publicized?
First of all, I don’t agree that “rape is a crime of violence, it is not about sex,” especially not in this context. Rape trials should be about accused rapists, not about rape victims. And although I think there’s a lot of truth to saying “rape is about violence and control, not sex” from the victim’s perspective, very often rape is about sex from the rapist’s perspective. Sometimes rape is about violence, control, male-bonding, or some combination; but some rapists rape because they want the sex and don’t give a damn what women want.
Secondly, using rape victims’ names and faces against their will as a means of achieving social change is using rape victims as tools for an end. I’m not convinced that this is a case where ends justify means; surely rape victims have been victimized enough, and had their autonomy ignored enough, already.
Even in a feminist utopia, where the shame and stigma of rape has been removed, I think it’s possible that some rape victims would prefer to avoid publicity (some people don’t like publicity under any circumstances, for instance). That decision should be left up to them.
Finally, being a victim of rape isn’t the same as being stabbed or shot. Defense attorneys in shooting and stabbing cases don’t typically slander and harass the victims in the media; but sometimes they still drag the victims through the mud (the OC rape case is an extreme but illustrative example of this). As bad as this already is, how much more would victims suffer if defense attorneys could use CNN and Foxnews to put victims’ names and images on the air?
Furthermore, at least one major survey of rape victims has found that a major reason most rape victims don’t report their rapes, is that they fear having their rape become public knowledge. That being the case, it seems likely that if networks start broadcasting rape victims’ names and faces, rape victims will become even less likely to report their rapes, and rapists will in turn be less likely to be convicted and punished.
(Some folks will respond “but what about if the ‘victim’ is actually a false accuser”? Well, in that case, publish her name and image after she’s been proved guilty in a courtroom, not before. Claiming that a general policy of harming actual rape victims is justified by the chance to do harm to the occasional false rape accuser, is monstrous).
However, even though rape is different, in general I don’t think the media should report names or faces of either accused or accusers in criminal trials, unless the parties themselves come forward and give permission for their names to be used. The media’s need for lurid reporting isn’t a good enough justification for the obvious harms that reporting names and faces can cause.
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I agree with your assessment, though you said it far better than I would have. However, I would go a step further and say that the media is problematic in criminal cases even when the names are suppressed. Witness the scores of media on any courthouse steps during any major criminal trial. And this (the Duke case) will be a major media circus event.
Though the discussion this case has created has been enlightening, I worry that evidence is being released to the press before the trial. I also think that in some small towns a supression order doesn’t work in fact, though it might in spirit. This is because in a small town the accuser is most likely known to a large portion of the town as well as the accused. In those cases I feel that a change of venue should be standard procedure to ensure an untainted and impartial jury. This not only benefits the accused but the accuser as well.
And I was watching (listening) to one of the shows on the NFL network, and it was heartening to acutally hear the sportscasters speaking about this case in terms of priviledge and class. And one man (his name escapes me) actually stated that he thought that the accuser would have a hard time getting fair treatment in Durahm (sp).
I don’t know what the answer is, but discussions like those I’ve read here and elsewhere are a good thing.
Tangential, but Jon Stewart on the Daily Show addressed the coverage of the Duke case: Video
I think that this distinction is extremely important. Unlike in shooting or stabbing cases where the behaviour of the defendent is examined, coverage of rape cases analyse that of the victim for culpability – is there anything she did that makes her responsible? Can any part of her behaviour be taken to amount to consent? – questions we’d never ask of a stabbing victim.
To paraphrase the current Scottish review of rape law, consent models of rape law have the effect that the focus of a trial becomes the behaviours of the victim rather than those of the accused. Giving the accuser the right of anonymity but not the accused might well exacerpate this problem: the lives of the accused are on public record, so the defence decides it’s somehow “fair game” to try to do the same to the accuser.
In short, I completely agree: anonymity is important, to protect the lives of those named in rape cases and to help safe-guard the legal outcomes from the glare of the media circus.
In a sense rape is about sex from the victim’s as well as the rapist’s viewpoint: you never hear of a case where a woman said, “OK, rape me if you must, but please don’t steal my wallet.” I’d rather be robbed, beaten, and left in a bad part of town with no ride home than raped. I’ve heard rape described as a crime of violence where sex is the weapon, which seems good to me.
Just yesterday I was discussing with a friend (with reference to an actual event) whether it was OK to spread an unsavory rumor if 1) you weren’t told in confidence 2) you had every reason to believe it was true. She said yes, I said no. I didn’t connect it to the Duke rape case or to rape or crime in general at the time, but I agree completely that the names of both accuser and accused should not be broadcast.
I saw that Daily Show. That didn’t really happen, did it? The mind reels.
I probably don’t need to clarify this, but just in case:
I meant of course that this seems to me to be an accurate description.
There was a somewhat-similar case (the name-release part, not the circumstances) when I was in school at the University of Central Florida. A female student accused a male student of rape. The alleged rape occurred in a fraternity house. The male student’s full name and local address were published in the local newspaper and the school newspaper.
After the investigation into the incident, the male student was cleared of charges, but his reputation was permanently tarnished, to the point that when he signed up for a tutoring session with me, I was still leery about being that close to him, even for only half an hour.
There was no correction printed in either the local or the school newspapers. But even if there had been, the male student would have this hanging over his head for the next three years (he was a sophomore, I believe).
What I’m basically getting at is that I’m not comfortable with the personal information of accusers — beyond their names — being published before the allegations have been proven or disproven. If these Duke students are guilty, then by all means publish their names, photos, and addresses, so that no one else is victimized by them. It is a fine line to be walked when it comes to releasing this information. Releasing names, fine with me. But newspapers and other media agencies need to engage in responsible journalism, a rapidly-declining practice.
The rape-is-about-violence-not-lust analysis is, in my experience, pretty universally accepted both among ivory tower feminists (including myself) and throughout the feminist blogosphere. Amanda had a post about it just a few days ago. Now, it’s not impossible that these guys did what they did (pace, those who think they’re innocent) because (to put it mildly) they were horny misogynists, and for no other reason; and you can argue that. But, as you’re placing yourself at odds with the status quo, you’re kind of taking the burden of proof onto yourself: what have you seen that makes you think the violent-not-lust theory is wrong here?
That said, I’m trying to push on a dichotomy that I don’t think really exists. In particular, I don’t think rape is about violence and control and not sex per se, because all three are intertwined in our culture. ‘Normal’ male sexuality, especially among teenagers and twentysomethings and as portrayed in porn, Maxim, and so on, is about exercising as much power over women’s bodies as possible — what you can ‘get’, ‘trick’, or ‘make’ her do. Humiliating her is part of getting off, and violence is just another means to that end.
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Well said, Amp.
I have not personally seen a stabbing or shooting or other violent crime media coverage do any of the following:
– slander the victim
– expose their entire personal life and private behaviours* or
– accuse them of being a “liar” about their victimization. There’s a bullet/knife sized hole in their hides, it’s beyond question that they have been shot/stabbed. Even with hospital records, because the issue of consent is verbal/private, rape is not the “same” crime in terms of how to “prove” it occured.
Since criminal trials are the focus of our discussion, I think it’s probably most fair to consider that NO names of ANY defendants or accusers of any felony should be released until the trial is over. That would make everything pretty air-tight… wait until it’s over. Complete confidentiality.
*Of course, there is often a “the victim was reportedly a member of a gang/dealer of drugs” does come up. But that’s not the same as “the accuser reportedly wanted to be a porn star/has been known for promiscuous behaviour/etc.”
And Noeuma, I think the “power” situation you are describing might be more broadly put as a desire for men to have women submit, to not have power except through men. Almost every man I know wants to feel powerful and resents or is taken aback when a woman shows herself to be such instead of submissive. Very few men I know want to humilate or be violent towards a woman. A woman can be “submissive” without being humiliated or hurt, it just involves not competing for what the other person percieves as power… not interfering with the status quo.
Uh….How do you know that being cleared meant he was innocent? There have been several cases of rapists being acquitted after videotaping rapes, so maybe he deserved that cloud over his head. And we all know that most rapes are not reported, which means most rapists don’t go to trial. I’d like more proof than a bald statement that he was cleared.
Jeralyn would do well to remember the Big Dan’s gang rape in New Bedford, MA. The local media published the rape survivor’s name, made her identity known, and she and her family was harassed, threatened, and basically hounded out of town. She had to stay in a shelter for her own safety and eventually moved after the trial was over.
Oh, and yes–they fucking did it. But according to the inbred misogynist asshole rape apologists spewing their garbage, she was a lying slut.
Since the Justice system in only a few places recognises Not Proven (Scottish law does, Innocent, Guilty, Not Proven) then not guilty is indeed innocent in these cases as it is a black and white system.
Revealing both sides names or neither sides should be the game plan, to do otherwise is realistically not fair or equal. Personally I would have no one named with naming them (or using images) as contempt of court.
Ginmar’s point is well supported by the criminal justice system itself: the burden is “beyond a reasonable doubt.” I’ve heard that US District Judge Matsch (of the McVeigh trial) put it this way: “We are not here to determine whether the defendant did it. We are here to determine the sufficiency of the government’s proof.” People who are the victims of an intentional wrong are not represented by the prosecutor. The criminal case determines whether the power of the state can be used to punish people for a crime against the public; the prosecutor represents either the people of the State, or the Government of the United States. The victim, personally, generally has a private right of action against a wrongdoer, and in such a case the jury does in fact decide whether the defendant “did it,” by preponderance of the evidence. So, even if the prosecution does not succeed against the Duke players, I think the better indicator is what a civil jury does under the predominance standard. (And that’s leaving aside what I think Ginmar is talking about, which is the refusal of juries to convict for rape based on a bunch of patriarchal beliefs.)
Not guilty =/= innocent.
First of all, I just cannot understand how anyone could think rape accusations are easy to make.
Secondly, I’m not opposed to keeping the accused names secret in theory, but I must say ginmar has a point about how it actually works in practice.
The last rally I went to in college was in response to a rape that had happened at another school nearby. On the top of the list of our demands was that the accussed be temporaraily suspended from his non-wage earning job as security for dorm parties. The same job he was doing when the (alleged) rape occurred.
Who the hell doesn’t do that right away anyway? And would he have never been suspended if we hadn’t been able to name names?
Yes, us knowing details about the accused in a local rape case is far different from everyone knowing the names of the accused in a national rape case, but it still makes me wonder what other stupid things people would do.
I think there’s a difference between publishing someone’s name and publishing their name with an address, phone number, e-mail, etc.
I’m also reminded of the Kobe Bryant case. The media did their best not to name the accuser, but it got out anyway. (Pamela Mackey, Bryant’s attorney, was admonished by the judge for referring to the accuser by name.) People went after the accuser mercilessly, threatened to assault her, to kill her, to harm her family for having the gall to accuse the great Kobe Bryant of rape. In fact, three men were *jailed* for threatening her. That alone gives me pause about suggesting we should identify rape victims.
I agree that identifying rape victims has implications for the safety of the accused, especially in high profile cases, and for that reason alone responsible press don’t do it without the complainant’s permission. And yes, the release of someone’s name should never be accompanied by information on their address, phone number, etc.
I would like to remind people though, that public disclosure of basic information does serve a very legitimate purpose — for instance, it can unearth actual witnesses to the crime, victims of similar crimes perpetrated by the same person, or even exculpatory witnesses who wouldn’t necessarily realize that they had important information.
It also places DAs and lawyers under a microscope. While this can be bad when it happens to the degree that it did in, say, the OJ Simpson case, it is generally a good thing for the court system to be absolutely and publicly transparent. One of the really corrosive developments in criminal law has been the pleas of government officials to trust them that information only they know implicates people in terrorism cases. Well, the government’s desire to impress the public with high profile terrorism cases (in order to justify their power to overlook normal civil rights protections) clearly outstripped any supporting evidence they had. This was certainly true of the Detroit prosecutions where it turns out the prosecutor had seriously compromised the integrity of the entire process.
It’s unfortunate that someone who is found not guilty nonetheless lives with the stigma of having been accused but if the trial occurs in the light of day with a complete public airing of evidence, fair minded people are in a much better position to realize when an innocent person has been unjustly accused and prosecutors are much less able to distort the public’s perception.
Thank you for your thoughtful comments on this case.
I’d been dismayed by Jeralyn’s defensive response, thought I generally appreciate her evenhanded reporting. I agree with you that the identities of the accused and accuser should not be public, and that there should be an opportunity to try the case properly.
Tit for tat does not solve the problem of disclosure (or of the dreadful situation that the drunken party-boys created when they invited scantily clad women to dance for their entertainment for money, and apparently added insults to the party fare).
I meant, obviously, the safety of the accuser in my previous post!
There are pretty good reasons why the accused name is made public in criminal trials. I’m just going to repeat them:
(1) The classic reason is that justice should be done in public – people have the right to know what goes on in their courts. It inspires public faith in the justice system.
(2) If people know who is being accused they can act on this knowledge and provide evidence to the trial. Plenty of serial rapists have been convicted because their names were made public because of a trial and this inspired other victims (or other people with relevant information) to come forward and give evidence against them. Publicity can also be useful to the defendent, even if they want secrecy. Coverage of a trial has provided people with watertight alibis and gotten them off in the past. It also hampers police investigations, if they’re prevented from publicly naming the suspect.
(3) This will be controversial. But criticism of anonymity of defendants also applies to that of complainants. Criminal trials have been thrown out because the complainant is named and people have come forward with information that demonstrates their testimony is false. I’m not saying testimony in rape cases is more false than in any other crime. I’m not suggesting that complainants be named to punish them – I think that was the logic on the TalkLeft thread, that’s just ugly, and Amp was right to call them on it. What I am suggesting is that naming complainants is justified in other trials to reduce the likelihood of miscarriages of justice, and I’m not sure that rape trials are different.
Barbara makes an excellent point. There is a current civil case about an accused rape at ASU of a student by a football player. Release of the player’s name has caused others who feel they were sexually harrassed by the player in question to come forward.
In this case, I wonder if naming the accused actually helps the defense? It is a high profile case being defended in part by Bill Bennet, a master of public leaks. This case won’t get to trial for a long time. By releasing the defendants names, the defense attorneys can use media pressure behind their evidenciary leaks to their advantage. A judge needs to publicly squelsh all attorneys involved immediately.
If the defenants’ identities remained secret, there would be more public scrutiny of the intentions of evidence leaks by the defense. The entire team has already publicly suffered the taint of the accusations and circumstances.
If the DA later finds significant evidence of the guilt of one of those not fingered that admonishes one of the two, there would be a public outcry of abuse to the innocent by the DA. This is why two were arrested, allowing the DA some flexibility based upon evidence that he now has greater rights to collect.
Not to lose anyone, ask yourself this:
What if the accused identities were kept secret and out of the press? Then, what if the DA later announces that charges were dropped against these two because of evidence later found, but that evidence leads to three new players being charged?
Under this scenario, the public would more easily accept the reasonable actions of investigators and the DA who merely used the system to gather the evidence necessary to bring appropriate justice.
In the current media frenzy surrounding the case, it would be near impossible for the DA to drop these charges and finger three others.
Bennet is a master of using confusion caused by the media circus to make the accused to look like victims. Strangely, this is one reason to keep their identities secret.
I don’t think I have an issue with making the names of people accused public, due to the whole openess things, although one could probably make the argument that it’s a different issue when we are talking about their names plastered all over the press. I do, however, recognize this:
as the ever popular ‘Don’t Two Wrongs Make a Right?’ arguement.
Sarah, under a system where the only verdicts possible are “Guilty” and “Not Guilty” the latter correlates less with “Innocent” than if there is a “Not Proven” verdict available as our “Not Guilty” includes both their “Not Guilty” and their “Not Proven”.
I disagree but that a matterof opinion. Several people noted that revealing the names of the accused allows other people to come forward with stories, you could of course cast that theother way and note that if the accuser was identified then people could also come forward with support or negative views, though I am sure people would be upset if people brought up past behaviour of the victim. The courts are supposed to judge on this instance alone, a guy with 50 prior not guilty verdicts for rape should be judged the same as a man with no record. Judging on the past is a bad route to go down, if a woman who falsely accused of rape is later raped her earlier crime should not stop us seeking justice this time.
Not naming anyone without their consent would likely work best as they can decide for themselves whether the press will aideor hinder them. I also don’t believe you should be able to go to a civil court after a criminal one, seems like being tried twice for the same crime or lack of to me.
Amp, the media has the name of this accuser (and does in most cases) and opted years ago — due largely to arguments made by antiviolence feminists/rape survivor advocates — not to name the accuser in rape cases. This is the only crime not involving children where the press voluntarily withholds the accuser’s name. It’s a curiosity, really — and one that many within the profession have pointed out doesn’t make sense from a journalistic point-of-view or a feminist point-of-view. For one thing the media has dramatically changed since this policy was adopted industrywide. With tabloids and tabloid TV and 24/7 newscasts and the Internet we’ve gotten used to seeing photos of the accusers — but with that blanked-out face. (I personally trace its starting point back to the cable-TV Blue Dot over the face of the accuser of William Kennedy Smith up through the actual tabloid publication of the full face of the accuser of Kobe Bryant — to date the mainstream hasn’t followed the tabs in that respect, but then look at NBC’s release of the photos, barely disguised now, of the accuser in this case! We’re getting there. It’s going to happen.) And the dirt! Oh the rush for dirt and photos and everything BUT the name. There are some compelling feminist arguments for relasing the name of the accuser that dovetail with the new reality of the media, including the concerns of feminist reporters that not naming the accuser makes most rape cases not even appear in the press — making rape seem even less reported by the victims than it actually is, and playing into the arguments of those who want to say every rape accusation is overblown. (I’m tired, I can come back later with links to the industry insiders more eloquently making these arguments if you like.)
In any case, I would agree with you if your view could become reality — but I’m afraid it just can’t. The media isn’t going in that direction but the opposite.
Sarah, the defendant’s name is always a matter of public record (save for juvenile proceedings). It is not nor should it be up to the defendant to determine whether it’s better for his name to stay secret. Justice is not always just a matter of tactical maneuvering, and it is certainly not a matter of private equity for the defendant or for the accuser. Secrecy is often the enemy of a just and civil society.
Not publishing the accuser’s identity has simply become customary for the press, as was said above.
Yes, arressts are published in most cities daily papers (with the exception of juvenile offenders). I don’t disagree with this, but more with the media circus that seems to surround cases like the William Kennedy Smith case and the OJ Simpson case.
In the latter, I personally feel that the media did more to harm justice than to protect it. But that is, as I said, my own personal opinion.
I’m for letting journalists into the courtroom to ensure the openness of the proceedings, but when Court TV and E! and others drag cameras into the courtroom and the trial becomes daytime veiwing to rival soap operas — that is what I object to, because those are only seeking to sensationalize an already horrible event. Yes, the press should have access but there should be a serious return to ethical journalism that has been lacking in the past several years.
Excellent points all around. I don’t think I can add anything except that it doesn’t matter much now, in this particular case, because the woman’s name has somehow become public. I expect people that read blogs like David Yeagley’s will be dragging her and her children through the mud.
I followed the link provided in the Tawana Brawley comments and was rewarded with not only the victims whole name, but also her criminal history.
Also, MSNBC has shown pictures of her on-air (though blurred).
The problems regarding contemporary media coverage tend to be most marked *before the trial* and in fact this is what I was trying to get at when I was so tired in my post the other night. :) It used to be that the mainstream media did not have 24/7 cable news, the Internet, and tabloid newspaper and television competition — which does not necessarily stick to industry standards, and certainly not industry standards voluntarily accepted newsroom by newsroom but not enforced in any kind of industrywide regulation or law. Yes, it always comes down to a “newsroom by newsroom” decision whether to publish the accuser’s name, photo, even her allegations. I mean the whole thing is a curiosity. There really *is* no rule but what the mainstream had volunatarily accepted in theory and then each newsroom applied on a case-by-case basis in *individual newsrooms* — it always became a “big decision” for each individual news outlet’s editors. And as there is no industrywide regulation and no law regarding release of the accuser’s name, of course in the new reality of the media you have many outlets making different decisions … and we’re seeing this seep into the “mainstream,” as with NBC’s release of the blurred photos in this case.
Feminist reporters are making the case that the unfairness of naming the accused and not the accuser has given platform to those who make outsized claims about the number of false charges of rape, and that shielding the accuser might well inflame still further the cruel search for dirt about her. It’s fine in this day and age apparently to raise questions about, for example, the mental stability of the accuser and it’s fine apparently in this day and age for much of the nation to hear and read all sorts of irresponsible charges against her — charges that are never filed against her, as her charges have been filed in the legal system against the accused. One leading advocate for releasing the name of the accuser who edited a paper that won a Pulitzer for telling the story of a rape victim with her consent to name her puts it this way: “The responsible course for responsible media today is this: Treat the woman who charges rape as we would any other adult victim of crime. Name her, and deal with her respectfully. And leave the trial to the courtroom.”
Put another way, the media reality has changed and the practice of not naming the accuser has in many ways contributes to the media trial of the accuser before the accuser’s charged are tried in the courtroom.
Because rape has a conviction rate of around five percent. And despite the fact that most of these are due to “insufficient evidence for a conviction” rather than “conclusively proven innocent,” society in general will accept a “not guilty” verdict as “she lied,” not “inconclusive.” Such a verdict coupled with society’s prejudices regarding rape (and everything else related to the case) would result in the victim being vilified, without the “innocent until proven guilty” benefit of the doubt which people are all too happy to extend to the men involved.
That makes for, statistically, around a 95% chance that any given rape victim (especially in a well-publicized case) will be the one blamed for the whole mess. She is also, incidentally, overwhelmingly likely to be the only person involved who didn’t have a choice in the original incident. To release her name is to put her at risk of having people make her name synonymous with “lying slut” and “false rape accuser” for nothing more than asking for justice—a risk that is, given the difficulty of successfully prosecuting rape, extremely high.
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