Rape: Naming Victim

When a serious violent crime has been committed and a suspect is taken into police custody, the names of both the accused and the victim are routinely, and often quickly, disclosed. Americans have viewed such disclosure as in the public good. It may help free an innocent person, it may bolster the prosecution’s case, and it serves to show the functioning of the criminal justice system. With the crime of rape or sexual assault, different concerns surface.

Most rapes are committed by men against women. This crime of forced intercourse inflicts both physical and mental anguish that continues after a victim reports the crime. Medical exams are followed by police questioning that requires the victim to describe the particulars of the experience. If the accused rapist is well known, there will be a flurry of media activity surrounding the incident, the accused, and the victim. Within days, the victim may be identified, and her picture may be posted on Internet websites. Some people criticize these disclosures saying that rape victims’ identities should be protected, at least until trial. Others assert that here, as with other crimes, there are valid reasons for disseminating the information. Most media organizations have policies against revealing the identities of rape victims, but some have argued that this is not enough and that laws are needed to protect the identities of rape victims.

A few states, including South Carolina, Florida, and Georgia, have statutes prohibiting news media from disclosing rape victims’ identities prior to trial. These laws have been criticized as restrictions on freedom of the press but also defended vigorously. Despite deciding cases based on a number of earlier laws of this type, the U.S. Supreme Court has not established a broad rule saying that rape victims’ identities must always be protected or that the media may always disclose this information. In the most recent decision in this area, Florida Star v. B.J.F. (1989), the Supreme Court ruled that one such statute was unconstitutional. However, the Court recognized that it was important for states to protect victims’ identities and suggested that there could be a similar, more narrow law that would be constitutional.

Supporters of laws protecting rape victim identities contend that rape is a unique crime that is so demeaning and traumatic that victims should be spared public humiliation. They also argue that rape victims will be more likely to report their crimes if they believe that their names will be protected. Some of the arguments against these laws are that identifying rape victims will eliminate the stigma of rape, that the victim’s name makes a news story more credible, that decisions like these are best left to the media, that it is not fair to the accused rapist, and that it is too large an interference with freedom of the press.

The legislators who have enacted laws protecting a rape victim’s identity believe that the emotional and physical pain suffered because of the extreme sexual assault justifies the need for greater privacy. The victim historically has been, sadly often, blamed for the crime, with some people assuming that she was somehow to blame for the violent assault. Rape victims may be shunned by their friends and family or threatened by supporters of the accused rapist. In response, opponents of these laws say that although rape is a terrible crime, there are valid reasons for disclosure that outweigh a victim’s concerns. To be sure, some people claim that revealing the names of rape victims will reduce the stigma associated with this crime by making it less shameful and more like other crimes. Rape victim identity law supporters counter that any decision about disclosure should be made by the victim. They think that it is unfair to expect someone who has already suffered so greatly to bear the burden of changing society’s views and behavior.

Some are concerned that because victims fear public humiliation they will be less likely to report a rape unless they know that their names will be protected. Still, there is no evidence that preventing disclosure encourages victims to report rapes. Some studies have shown no significant difference between states that punish disclosure and those that do not. However, this view does not consider the fact that even in states that do not forbid disclosures, media organizations generally do not report rape victims’ identities anyway. This situation, thus, makes it hard to really see the effects of disclosure laws on the decisions of rape victims. Also, other studies show that victims are more likely to report rapes if their identities are protected, and that most women and men support these limiting laws.

One important question is whether the identity of the victim is an important detail that adds credibility to a news story, thereby promoting the free speech values found in the First Amendment. It is, certainly, the mission of reporters to set out as many facts as they can. Critics of this argument note that it is easy to provide other details that will make a story credible and that with good reporting a victim’s identity is not needed.

Another matter of genuine debate is whether limiting disclosure is due to gender bias. Proponents of this argument feel that it is as if the media is patronizing the rape victim. Those who disagree say that the argument might be valid if we lived in a world where rape victims were shameless, but that is not the situation today so that privacy is still necessary.

Criminal defense lawyers often point out that protecting the name of the victim is unfair to the accused rapist. The accused is presumed innocent but is forced to undergo careful scrutiny surrounding the accusations. Hence, when individuals accuse others of serious crimes they should be treated similarly. However, critics of this argument say that revealing the name of the alleged perpetrator does not balance the situation, it just makes it worse for the alleged victim.

Although high-profile sexual assault accusations receive the most attention, any time someone is raped media organizations must make a decision about disclosing the victim’s identity. The debate continues over policies and laws that prevent disclosure.

PAUL MARCUS

References and Further Reading

• Denno, Deborah W., Perspectives on Disclosing Rape Victims’ Names, Fordham Law Review 61 (1993): 1113.
• Marcus, Paul, and Tara L. McMahon, Limiting Disclosure of Rape Victims’ Identities, Southern California Law Review 1019 (1991).