Duke Rape Case Raises Issue of Protecting Identity of Accused

Wednesday, April 26, 2006

By Wendy McElroy


The accusation of rape against two Duke University students has set loose the media equivalent of a lynch mob. To the media mobsters, trials seem to be a legal nicety, not a necessity, to ascertain guilt.

The names and photos of the accused are smeared across network television in what sometimes seems to be a conscious effort to destroy lives. Meanwhile, so much as hinting at the accuser's initials is strictly forbidden. The imbalance is wrong.

I believe that neither party should be named until a public trial begins; at that point, the names of all parties should become public record. The demand for transparency in judicial proceedings does not reflect indifference to victims.

Quite the contrary. 'The right to a public trial' is one of the most basic guarantees of justice and nothing expresses concern for victims better than ensuring judicial fairness.

Moreover, maintaining the privacy of only one party to a public procedure encourages unbalanced reporting in the media, which is fair to no one.

The media is not required to protect the name or privacy of accusers. Although rape shield laws are widely viewed as imposing such an obligation, they are actually rules limiting what evidence about a victim's sexual history can be presented at trial. They do not limit freedom of speech or the press.

In the wake of the Kobe Bryant case, states like Colorado have done an end run around the media by permitting accusers to use pseudonyms in pressing charges but this differs from a legal prohibition.

The media's silence is a voluntary code of conduct. A different code could be adopted by which both parties or neither are named.

Why doesn't that happen?

Part of the reason is that the media still buys into the theories of rape promoted by political correctness. One of those theories is that false accusations of rape are extremely rare. This means the accuser is generally assumed to be telling the truth; even if there are reasons to doubt the accuser's accuracy, there is still the assumption that 'something' must have happened.

The flip side, of course, is that the accused is prejudged as having done 'something' wrong. These two assumptions alone may account for the wildly different treatment of accusers and accused by the media.

In contrast, I believe false accusations are common. How common? No one knows for sure. False accusations are not tracked or routinely punished as other crimes.

Feminists often claim that 2 percent percent of all reports are false.

Another widely quoted figure comes from a study conducted by Eugene Kanin of Purdue University, who examined 109 rape complaints registered in a Midwestern city from 1978 to 1987. The police finally classified 45 of them -- or approximately 41 percent -- as false.

When statistics vary so wildly, all that can be said is 'we don't know.' But the prevalence of false accusations can judged with reference to the importance placed upon preventing it throughout history. For example, there are only 10 Biblical commandments and one of them states, "Thou shall not bear false witness…"

Some of the main safeguards of Western jurisprudence are specifically meant to prevent false accusations. They include:

--The right of the accused to face and question an accuser. The public nature of these rights discourages lying and makes any lies that do occur more difficult to sustain.

--The presumption of innocence. This procedural right places the burden of proof on an accuser's shoulders. It recognizes the fact that accusations can easily made and, so, must be proven before they can be credited.

--Laws against perjury.

A public trial. This not only provides the protection of publicity but also allows others who may have been wronged by the accuser to come forward.

Moreover, from the anecdotal evidence of merely being alive, more people know that human beings often lie. The motives for lying vary widely: revenge, fear, profit, shame, in order to protect someone else. The incidence of lying increases when incentives to do so are present.

In the Duke case, for example, the accuser has both an extensive police record and children. After the notorious party, she was described as "just passed-out drunk" in a car by one of the first police officers to see her.

By claiming rape she may have been trying to avoid the possibility of re-arrest and the possible loss of her children to the child welfare system.

The fact that the media is shielding her name (while trumpeting those of the accused) provides another incentive. A shielded accuser does not incur the same degree of personal devastation as does a named accused.

During trial, the act of extending privacy to an accuser sabotages the justice system that requires transparency to avoid corruption. But even before trial, shielding only one side sabotages justice.

With particular reference to the media, it also reveals and encourages a bias that verges on hypocrisy in at least three ways:

--Accusers are not similarly shielded in other crimes involving adults, even to crimes that are as traumatic as rape (e.g. kidnapping, attempted murder).

--Through interviews with an accuser's family and associates, information that bolsters the accusation is aired yet the interviewer remains technically 'pure' about not naming names.

--The eagerness with which the accused is savaged casts doubt on the compassion and fairness that media mobsters often claim as their motives.

The Duke case didn't require so much as an indictment for the eagerness to kick in. (Of course, once an accuser's identity becomes so publicly known that it cannot be ignored, the accused can be equally savaged thus bolstering the argument for a policy of privacy for both before trial.)

Shielding the identity of only one side of an accusation reduces justice, produces biased reporting and constitutes an invitation for abuse from those being 'protected.'

Consider the Duke accuser's co-stripper Kim Roberts. She recently denigrated the character of defense attorneys for violating the accuser's privacy in releasing photographs and her own privacy in releasing her criminal record. (This, despite the fact that it was the prosecuting D.A. who opened the door wide to media disclosure.)

Apparently, witnesses for the accuser have a claim to privacy by association, even regarding public records. Yet privacy concerns did not prevent Roberts from granting interviews to the media (Newsweek, the Associated Press nor from writing to the New York firm 5W Public Relations. Roberts asked the PR firm, "I'm worried about letting this opportunity [the Duke case] pass me by without making the best of it and was wondering if you had any advice as to how to spin this to my advantage."

One-sided demands for privacy are like a shell game played with moves meant to confuse. The solution is simple. The media should cease to make accusations into reality shows and shield the identities of both parties. Once a case goes to public trial, however, it should become just that: public, and for both parties.

Wendy McElroy is the editor of and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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