Rape victims' names withheld by choice, not law
Statutes on confidentiality don't trump media's constitutional rights
By Christy Oglesby
(CNN) -- We know his name and then some. He's Kobe Bryant, NBA All-Star. Three-time NBA champion. Father, husband. Confessed adulterer. Defendant.
But who is the woman who told police the likeable Los Angeles Laker raped her? She's 19, and she works at the hotel where Bryant stayed on June 30, where the assault is alleged to have occurred.
The curious public wants to know more. People want to know her name and her reputation. Some ask why it is that the identity of the state's star witness remains unknown while the defendant's name is known to the world.
And, some ask, if feminists and rape crisis counselors are trying to teach the public that rape is violence, not sex, doesn't withholding her name hinder that cause?
Many states, as a measure to encourage victims to come forward, have rape confidentiality statutes that prevent law enforcement and court personnel from revealing the identity of sex assault victims. In Colorado, where Bryant is on trial, it's a misdemeanor punishable by up to a $100 fine and 90 days in jail. Those confidentiality laws are often confused with rape shield laws.
Rape shield laws generally govern the admissibility of evidence and testimony of an alleged victim's sexual history during trial, based on the theory that evidence of past behavior is irrelevant to the current case. They do not address revealing the identity of victims.
The media, legal experts say, are free to print those names. The U.S. Constitution guarantees the press that right. Media outlets choose not to exercise it. And legal, psychological and journalism experts say the media have made the right choice.
"The big question is ...'Do you want to see your daughter's name in 28-point type on the front of The New York Times as a rape victim?' ... It isn't a feminist issue when a lot of sexual assault victims are men," says Victoria L. Lutz, of the Pace Women's Justice Center, an organization that works to eradicate violence toward women.
"A better question," Lutz continued, " is 'Do you want to see your brother's or your son's name as a victim of sodomy on the front page of The New York Times?'"
During the early 1970s, rape crisis centers started approaching media outlets arguing that the names of rape victims should not be disclosed. Now, almost all mainstream media organizations have internal policies prohibiting publicizing those names, says Kelly McBride, a journalism ethics expert at the Poynter Institute, which teaches current and future reporters.
"Rape is still the most underreported crime and back then it was even more underreported," McBride says. "And the argument was if the victims' names were made public, other victims would be less likely to come forward..... It's good because it protects them from unwanted stigma and scrutiny, it's bad because it possibly feeds into the cycle that there is something to be ashamed of."
Jamie Zuieback, spokeswoman for the Rape, Abuse and Incest National Network, says her organization encourages victims to give journalists permission to use their names. "It really does break down those myths about rape and sexual assault," she says. "At the same time, we recognize that this ..is a very personal crime. So it really needs to be something that victims have a choice of doing."
According to one expert, until society changes its opinions about rape, victims who take advantage of the media's policy are making a good decision.
"All of the cultural signs haven't changed a whole lot in relation to consent," says Myrna Raeder, a law professor and former head of the American Bar Association's criminal justice section. "There is still a lot of blaming of the woman -- that she asked for it, look at her clothing, look at her conduct."
And there are other issues, Lutz says. Women who have religious considerations might not want people to know they sought or took a morning-after pill. A woman who becomes pregnant might not want questions about the child's origins or she may not want co-workers to know she may have been exposed to HIV, she says.
Poynter encourages journalists to help fight that stigma by reporting about rape when it is not a news event and by asking victims for their permission to publicize their names, McBride says.
"The idea is that rape is not merely a news event, but it is a force that is shaping our society," she says. "In the name of doing justice to the issue, they need to search for stories ... that can talk about the impact that rape has on an individual, a family and a community."
And what about the defendants? Can they get their good names back if acquitted? Should their names remain confidential until conviction?
McBride says some newspapers do not publish the names of defendants in rape cases until adjudication or if it involves incest, when disclosing the suspect's name would identify the victim. But other legal and sexual assault experts say waiting until conviction in rape cases before publishing an assailant's name is not the answer.
Raeder says most investigative bodies maintain the confidentiality of suspects before indictment, and that is the appropriate step. But once formal charges are made, all felony suspects are treated the same, she said, whether accused of arson, murder or rape. After indictment, she said, "a criminal defendant is a criminal defendant."