In Kobe Case, Accuser Is Rightly Identified

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Last
Friday, the judge who presided over Kobe Bryant’s “rape” case announced
that more
sealed documents
will soon be released.

With
new facts emerging from the now-dismissed criminal case and a related
civil court case pending, the debate surrounding Bryant continues.

The
manner in which society, the media and perhaps the law approach
“victims” is being gradually redefined.

One
of the most controversial questions raised is whether Bryant’s accuser
should be publicly named. During the criminal proceeding, the accuser’s
name and most of her history received the nominal protection of
Colorado’s Rape Shield Law. A media taboo against identifying “victims”
of sexual assault ensured anonymity in the mainstream press.

But
her name, photo and history flashed across the Internet. True anonymity
was a futile
exercise
because too many people believed it was patently unfair
to name Bryant, who was legally presumed innocent, while extending
the automatic presumption and protection of victimhood to his accuser.
Veteran journalist Geneva Overholser felt strongly enough about
that unfairness to resign
from the Poynter Institute
– a noted journalism education organization
– because it deleted the accuser’s name from one of her columns.

The
issue of accuser anonymity is being debated on two basic levels:
Is it fair; and, is it possible?

Both
questions arise in the civil suit even though that venue extends
no legal protection to an accuser’s identity. The accuser asked
to be identified as “Jane Doe” on her complaint. Federal Judge Richard
Matsch denied the motion, stating,
“The parties appear as equals before the court and that fundamental
principle must be protected throughout these proceedings.”

He
added that the accuser’s identity was already well known.

The
media taboo against naming “victims” is also weakening. Last week,
a respected Denver newspaper, The
Rocky Mountain News
, identified the accuser both on its
Web site and in a print edition. Editor John Temple explained that
fairness required both parties in a civil case to be named. So far,
most major media has not followed suit – one exception: the
FOX
News Channel and FOXNews.com
, which identified her last Friday,
and FOX
News’ Greta Van Susteren
, who discussed the topic on her Friday
show.

Should
accusers be named in criminal and civil court cases? Those who wish
to identify either both or neither of the parties do so largely
out of a desire to reduce false accusations.

Similarly,
naming an accuser holds him or her accountable to the community.
It also permits anyone who can substantiate or discredit a claim
to come forward.

Rape
has become an exception because of the public shame attached to
being sexually violated. Yet, today, the greater disgrace adheres
to whoever is accused of sexual misconduct. The disgrace involves
not merely shame but also the likely loss of marriages, friends,
reputation, career and wealth. Yet the damage and shame inflicted
on those who are merely accused does not prevent the media from
naming them.

Debate
over the propriety of identifying both parties is quickly followed
by speculation over whether anonymity for only one side is even
possible. Once half of the story becomes public, can the other half
remain confidential? The Internet has ushered in an age of instant
and omnipresent information. Nothing short of totalitarian censorship
may be able to enforce anonymity for “victims.”

Consider
just one instance. The Eagle County sheriff and district attorney’s
offices have already released a
cascade of documents
on the Bryant criminal case, with the page-count
approaching 1,000.

Most
of the documents have been heavily
redacted
. That is, they have been edited to delete references
to the alleged victim’s name or to “sexual conduct held to be inadmissible
under the Rape Shield statute.” But the careful editing provides
no real protection.

For
example, an unredacted transcript of the interview that police conducted
with Bryant the night after the alleged rape is freely
available online
. [Warning: graphic language.] The implicit
message of sites that post such documents is this: If you are going
to release information, release it all so the public can judge.

Much
of Bryant’s punishment has come from public reaction; for example,
he lost his lucrative celebrity endorsement contracts. The public
is justified in wanting to base their judgments on all the facts,
especially since the criminal case is no longer active. For example,
the publication of documents has revealed that Bryant’s accuser
told at least two lies
to the police.

Specifically,
a letter to the police from the accuser was among the previously
sealed documents that were released after the collapse of the criminal
case. It apologized for lying about two
details
of the “rape.”

The
lies were part of a legal process that could destroy another human
being’s life. Why should the lies or the name of the accuser who
told them receive court protection?

The
Bryant saga will run on and on. In fact, the civil case may provide
more legal theater than the criminal proceeding. For one thing,
the accuser has procured the services of mega-hitter
lawyer
Lin Wood. Wood was
added
“to address growing concerns regarding media coverage”
and “her privacy rights.”

The
accuser swings between demanding privacy and taking public action.
As a practical matter, it is becoming increasingly apparent that
those who bring accusations cannot have both. As a matter of fairness,
that may be for the best.

For
the record, her name is Katelyn Faber.

October
21, 2004

Wendy
McElroy [send her mail] is
the editor of ifeminists.com
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).

Wendy
McElroy Archives

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