Privacy of Rape Victims

Remove all ads!

First, let me say that rape is a terrible crime. I would never wish it on anybody. I mean no offense to anyone here who has suffered from it or knows someone close who has.
In the US, if a person accuses someone of rape, their identity is kept private. However, the identity of the person being accused of the rape is not kept private.
I have a problem with this. My problem is in the cases, and their are plenty, were the person is being wrongfully accused of rape.
Say a girl accuses a guy of rape. They have consentual sex one night and the next day the guy says it was just a one night thing for him, nothing else. So the girl is scorned and she claims rape. Or a girl has consensual sex with someone famous and/or rich. Afterwards, she wants her fame and some money, so she claims rape.
In both of those examples, the girls identity is kept private. The identity of the raper is not. Its in all the papers, television, etc. Even if the guy is aquited, his name is still soiled. And if he is aquited, what happens to the girl and her identity? Nothing, her name is still kept private.
Take the Kobe Bryant case, he is being accused of rape. I'm not saying whether he is innocent or not, that's not the topic here. But what if he is? What if it really was just rough sex? What if he is aquited? It doesn't matter with his image. And her identiy is still kept secret.
Is this fair when someone is wrongfully accused of rape?
Personally I think that it should either be all or nothing. Either both identities are kept private until a decision is reached, or both names are made public.

 

Good point. The US lapse to have once allowed live tv reporting from court surely doesn't improve that situation. People are bombed with info about Kobe Briant, so practically every detail of his current life is reported live on tv.

Look at O.J. Simpson - the terrific case, f*cked up by an incompetent judge, reported life on tv. He was deemed not guilty - but in the eyes of the public he is, or at least someone who got away cheap. And that's the problem for Briant too. Found guilty or not, the stench remains.

With the media around Briant has to fight two fronts: The one at court and the trial in the media, and that necessiates humiliating confessions in press conferences to regain the public support to stay in the business of commercials and, of course, sports. In the second trial he's without adequate protection.

The media is pretty much free of restraining rules these days - freedom of press a holy thing. But that takes not into account the power a huge network in the hands of a single person, like Murdock or Berlusconi, wields.
That wasn't there at the time the constitutions were made, and wasn't taken into account.

I mean the gvt is limited by the constitution to snoop on their citizens - press is much less. You know, the public has a right to be informed ... about everything, and when you get in the focus of interest your life changes - and you loose influence on it - because others want to make money with your privacy to get good quotas and profitable commercials.

Sure, keeping trials and identities secret is a great thing, but you'll have to overcome the problems with basic constitutional stuff like public trial, freedom of press and such.
An ethics codex for media would be a good thing - but wouldn't probably work in the US with agressive competitors like FOX arround, or in the UK with the SUN.

And that's only the part for the potential perpetrators. The actual victims are just as unprotected from public harassment.

 

I can think of some good reasons as to why rape shield laws should be in place and they outweigh getting rid of them imo.

We know that historically rape is one of the most if not the most underreported crime. Part of the reason it is so underreported is that there has long been a negative stigma associated with being a victim of such a crime - whether that stigma is an actual one placed by society or simply a construct of the minds of the victims is irrelevant, the result is the same - rape is reported far, far less often that it actually occurs. As a means of encouraging the report of one of the most serious crimes in our society, the rape shield laws were enacted as a means of helping women realize that even if they do fear a stigma from being the victim of a crime that such a stigma can now be avoided because now her identity will be protected. In part due to a change in society and in part due to the rape shield laws there has been a decrease in the way rape is underreported though according to the Uniform Crime Reports published by the FBI it continues to be among the most underreported crimes there are. That's one of the benefits of the law.

Conversely, what is the benefit to disclosing the identity of the victim to the public? Well... I suppose it might discourage the false reporting of a rape. However, I believe that the false reporting of rape is an incredibly rare occurence, particularly relative to the number of reported and unreported rapes. It happens, but it happens so rarely that it would be rash of us to base the functioning of our entire justice system on an exceedingly rare occurence. On the other hand, we know that rape is still underreported and rape shield laws help actually alleviate this problem. This weighs clearly in favor of the rape shield laws in my opinion.

The other argument that seems to be against the laws is it just isn't 'fair' that Kobe Bryant is in the news and the 18 year old alleged victim is not. Well, perhaps Kobe shouldn't be in the media spot light but he is not in the light because he is accused of a crime but because he is the star of the NBA accused of the crime. I'm not sure how things would get any better by fulfilling the prurient interests of the public and plastering the 18 year old girls picture everywhere. It seems like the argument is, 'I'm under pressure so you should be screwed too' but there isn't a really compelling reason as to why society needs to know the woman's identity but there is a compelling reason to protect it - encouraging the reporting of rape and thus hopefully producing a stronger deterrent. I'd also note the rape shield laws will not protect a woman if it is discovered that she has improperly made an accusation of rape for nefarious motives.

It is difficult to make laws that always apply in a manner we would like to 300 million people. There is a danger though in taking what is a very rare occurrence and then making broad generalizations of how the legal system functions and how it should function. In the same way that the OJ case doesn't demonstrate that DNA evidence is worthless the Kobe case doesn't produce a compelling argument about the rape shield laws when his is a truly unique, once in a decade case in a sea of every day rapes of which you and I never hear tale.

The rape shield laws protect victims in a trying time and increase the likelihood of a rape being reported addressing a serious problem. They do so without impacting on any significant right of the defendant - Kobe doesn't lose anything by the 18 year old victim remaining anonymous rather than being on the front page of the Enquirer. While it may be unfortunate in some rare cases for the accused to be the focus of the media, making it difficult on the victim in no way alleviates this hardship. Therefore, the rape shield laws serve an important function, have proven to be effective, and should be allowed to continue to serve their purpose.

Edit:

Untrue. Kobe Bryant has at his disposal some the most formidable PR machines ever built. He is mind boggingly well protected.

Also, there is a note at the end of Ragusa's post saying victims aren't protected from the public by the rape shield laws. However, that ignores that without the laws the young girls picture would be in the paper and her name would be on the lips of everyone - that's not the case. They do offer a substantial degree of protection.

[ August 11, 2003, 17:02: Message edited by: Laches ]

 

Rape victim's identity should be protected. The first most obvious reason is shame, even though she's not (usually) guilty at all, the second is fear. Even if the guy is detained, all his pals can't be. He will still know who accuses him, but at least some of the danger can be avoided by not making the case public knowledge.

False accusations of rape are a horrible thing, but they don't happen often enough to justify disclosing the name of the victim. Even is she actually loses the case, it might be due to lack of evidence, to the supposed victim's own error of judgement, or similar. However, if the accusation was knowingly and wittingly false, the victim's identity should be revealed to the public. In any other case, the victim's sanity needs to be examined and proper treatment apply. In most cases the supposed victim receives the benefit of the doubt, even though it should be given to the defendant, no matter the case. This should be specifically avoided when the person has already accused someone of rape and lost the case.

I would extend what I proposed above to include seduction suits too (they don't exist in all countries). It's sometimes very hard to tell 'normal', socially acceptable, seduction from criminal one. The margin of error is huge and so is the space for false accusation, which is also much easier to prepare, especially for a sick mind or wounded ego.

Last but not least, I really, really stress that the only person to receive the benefit of the doubt is the defendant. While formally true, reality may differ. Once sufficiently proven to be guilty of rape, the guy's place is by Bubba's side. But no sooner.

 

Laches has defended the existing rape shield laws well so I won't belabour that part. It's true, though, that even if someone is acquitted of a sexual crime, the taint will not go away. It's not as true for most other kinds of crimes but where sex is involved the public is always inclined to believe that he was guilty and "got away with it". So I think it would be perfectly valid for the name of the accused in a sexual crime to also be protected.

There was a doctor in the press recently, can't remember her name, but a mentally ill patient said she was his girlfriend and she ended up on trial having to prove the man was delusional and/or lying. Whether or not she actually did date a psychiatric patient, her professional reputation has been forever ruined. That seems very unfair to me.

As for Elios's comment that

Being falsely charged with rape is a strangely prevalent fear among North American men, and with little basis. Sure some women do spread nasty rumours, and I don't condone this, but given how unpleasant the legal process is for the "victim" in a rape trial, very few of even the most vindictive and vicious women would want to actually press charges or talk to the police. It's unfortunate that so many men fear this happening and I wonder how that came to be.

 

Shielding the identity of the rape victim puts the defense of the accused at a severe disadvantage. The Kobe Bryant isn't as good an example as others are. A better example would be some of the cases against the Catholic priests. Once the cases went public other victims came pouring out of the woodwork and the case against the accused became even bigger.

In rape cases that may have been consensual sex the jury is forced to make a decision on whom to believe. Character plays a major part in that determination. The prosecution is allowed to call witnesses that can attest to anything. The defense may do the same, but if they are not allowed to divulge who the accuser is it makes it almost impossible. In the Kobe case who is to say she didn't extort money from a different player. Maybe that other player would come forward if he knew.

 

Are you saying this is a bad thing? The other victims probably didn't say anything earlier because they were ashamed or were afraid they wouldn't be believed. When they see someone else having the courage to come forward, maybe that gave them strength to do the same.

Who's to say she did? If the woman had previously made such attempts, it is quite possible the defense would know about them by now, if those attempts had been part of previously-filed defenses.

All in all, I'm in agreement with the majority of the previous posts here - on the whole, shielding the victim is preferable to making the identity public.

 

My point was that if disclosing the accused's name is allowed to help the prosecution then the defense should be allowed to disclose the accuser for the same reason.

I think it may actually be damaging to the prosecution that they haven't had anyone else come out and say he forced sex on them.

For the record I currently do not have any opinion as to whether Kobe is guilty or innocent. The only opinion I have is that I do not believe he is being given every opportunity to prove his innocence.

 

I think there is some confusion over what keeping the identity of a victime private means. It doesn't mean that the defense isn't able to call any type of witness that it wants. The defense can call character witnesses if it wants and the defense can do any type of discovery that it could otherwise since the defense will know who the alleged victim is. What can't happen is that her name and pictures can't be published in the media. The only possible way this hurts the defense is if they had planned on saying things in the media about the alleged victim in hopes of influencing the prospective jury pool - something that is unethical and illegal anyways.

It doesn't prevent the defense from doing anything it would've done otherwise.

Edit - if she has alleged similar things in the past the prosecution and the defense will be aware and that may be considered at trial - the media is an inappropriate forum for discussing this type of stuff anyways.

Edit - typo

[ August 11, 2003, 23:27: Message edited by: Laches ]

 

As I understood it the unreliability of human memory is another problem in some rape-cases. That was a special US problem in child abuse cases. Not undisputed, researchers have found out that wrong approaches by the ever popular "help-yourself" groups can result in false memories generated.

IIRC there was an episode when a woman went there and was asked to tell about her abuse experience. She denied to have ever had one, and the reply on that was that she had only forgot and that memories will come back. Treated like that it is well possible that the people in the end firmly believe (and credibly report) to have been abused while they, as a matter of fact, havent. Brainf*ck therapy - with the best intentions.

This was demonstrated with an experiment where people were interviewed and the experimentator, after making a background check with relatives, *planted* false memories - stuff like a broken leg at the age of 4 or that they had been caught shoplifting - something that clearly didn never happen.
Some 40% of the probands in the end vividly remembered these episodes and even fancied them out. Human testimony is about the least reliable evidence around, yet it is the most important. With this in mind you have a good reason to handle sensitive cases like child abuse or rape on a low public profile.

What I'm trying to point out is that the consequences for an innocent, who finds himself caught in the spotlight of the media, are grim. There is no margin for error.
One gut-wretching tv appearance of a false-memory-ridden victim & witness (or, in worst case a liar) is all the public needs for their judgement. That life is ruined, even before the judgement at court is made.

I'm well aware that I'm just drawing the worst case scenarios here but they are worth consideration.

[EDIT: That is in the essence: It is necessary to protect both the identities of the potential perpetrator *and* the victim.]

[ August 11, 2003, 21:55: Message edited by: Ragusa ]

 

@ Laches

I have to disagree with that. Let's say your ex-girlfriend (assuming you are male) broke up with you and said "I'm moving to Colorado and I'm going to find some rich guy to screw over" She later on turns out to be the person accusing Kobe of rape. If you knew it was her, wouldn't you contact the defense? Since you do not know who it was and the defense has no way of using discovery to find out who you are, then the possibility of an innocent man going to prison is possible.

 

@ The Great Snook:
That’s a pretty far-fetched scenario. First of all, how likely is it that your ex is going to tell you her plans if she’s broken up with you and probably thinks you are pissed at her? And in the same vein, without collaborating evidence, it is quite possible that, if you came forward, your statement would be dismissed as sour grapes. I realise you were just using this as an example, but you’re going to have to come up with something better than that to convince me that the dangers of non-disclosure outweigh the benefits.

 

I'm not sure the prior example wasn't sufficient or realistic, but how about this one.

Your girlfriend had been pressuring you to marry her for you were stable and has a good paying job. You were not moving at the pace she wanted you to, so she pretended to be pregnant to try to force you into matrimony. However, you found out what she was up to and ended up breaking up with her.

Don't you think the defense would want to know that?

 

I’m not sure that’s much better. There’s a big difference between faking pregnancy to try to move a relationship along and crying rape. I’m not even entirely sure that, if I were in the situation you described, I would feel that her actions were enough to make me want to say anything to the defence anyway.

And I’m not a lawyer, so I don’t even know whether your two examples would be admissible in court anyway, since the first would probably be difficult to substantiate, and the second, if not difficult to substantiate, may not be deemed relevant because, as I said, faking pregnancy is a far cry from crying rape.

I concede that the situations you describe could happen and might cast some doubt on a claim of rape. But I am not convinced that they would occur frequently enough to justify disclosure of identity. Laches has done a good job of stating the case for non-disclosure, so I won’t repeat them. I just fear that public disclosure would do more harm than good.

 

Perhaps the victims should be examined for physical evidence that they had been forced. Because rape does cause some damage to the body, and it would be possible to find out if such damage existed within the victim.

 

Not always. If person 'x' puts a gun to a woman's head and then rapes her there may not be much of a struggle since she may realize that to struggle may lead to her death. There are a lot of scenarios where a woman could be raped without physical evidence of violent sexual penetration. Another scenario where this would be the case would be if physical harm was threatened to someone other than the woman which would also fulfill the requirements of rape (I am aware of this happening though not as frequently as the gun example for probably obvious reasons).

That said, alleged victims typically are examined for physical evidence. I understand that there are hints there is evidence of at least aggressive sex in the Bryant case though I suspect the defense will be that any penetration was consensual.

 

I really agree with Laches, and he has stated it well. I will only add one question to those who think that the woman's identity should be made public: If it were your wife, daughter, or girlfriend, who had to go through such an ordeal, would you want her name and picture in the news? With the details of what may have happened?

 

I agree with the above posts regarding keeping the victim's name out of the media. I also think that given the potential stigma attached to all sex crime allegations, the accused should be given the same protection.

Once convicted, fine publish till your blue in the face, but not prior to conviction.

Regarding the last few posts about examining the victim for physical signs of rape, the main problem is in fact that a hell of a lot of cases are reported quite some time after the event. There may be many reasons for this, mainly I would have thought due to the potential hurt, stress etc, it takes a lot of courage to go through with a rape trial, and a lot victims need time to come to terms with what has happened before they go to the police. Thus no longer any physical signs of rape are available.

 

I agree that in the case of Joe Bloggs, there would be little interest in the media, at least nationally. You'd be surprised (not I expect) how much is my local paper of details of ongoing cases. However, there is a very finite limit to how many people will find out if it is not published in the media.

SOME local people, sure, some people will have to know as they're involved in the trial, but in reality very few people would find out without media involvement.

I'll give you an example from the UK:

Jonathan King (pretty famous in the record industry in the UK, household name in the 70's) stood trial, public humiliation assured (this was sexual abuse of minors), and it was in the media. He was found guilty and sentenced. It was what came out afterwards that was remarkable - He had also been found guilty some three or so months previously in a separate trial for different offences. This had been completely kept hush, hush in the media, and although he was well known, and although it was the kind of scandal that we all gorge upon in the Sunday Papers, very few people indeed knew about this until the end of the second trial.

The reason for keeping the first trial quiet was obviously to make sure that the outcome didn't impact on the ability to conduct a fair trial in the second instance. In normal circumstances this trial would have been a very public affair indeed.

So I would say that even in the cases of the rich and famous it is possible to keep these things quiet to a very large extent, provided the media are under court order to refrain from reporting.