Op-Ed: Publishing the Identity of Sexual Abuse and Rape Victims Puts Society in ‘Clear and Present Danger’

In their reporting of the alleged crimes of retired Penn State assistant football coach Jerry Sandusky, The New York Times wrote a detailed piece about “Victim 1”. While they did not identify the young victim by name, now in his late teens, the Times article included other identifiable characteristics that would lead any savvy web user to him. In his analysis of this article, public editor Arthur Brisbane concluded that “the details concerning the auto accident and the boy’s athletics added human interest to the story” but “the traditional mandate to preserve privacy is there to protect sex crime victims — a broader social purpose that, in my mind, outweighs the transient benefits of a single human-interest story.” Because of the social stigma that is an inherit part of sexual crimes, the press and American courts should go lengths to protect victims’ identity — no matter how interesting it might be to potential readers.

While many members of the press usually don’t publish a sexual abuse or rape victim’s identity, there is no law barring them from doing so. As long as a victim’s name or identifying characteristics — such as a previous car accident in the case of “Victim 1” — are truthful and obtained legally, the press is free to publish that information based on Florida Star v. B. J. F. and Cox Broadcasting v. Cohn. In the former, Justice Byron White wrote that such laws forbidding the press from publishing information from public records “would make it very difficult for the press to inform their readers about the public business and yet stay within the law.”

As a result of these rulings, it’s generally accepted by courts that the First Amendment protects the press against publishing the truthful identity of sexual crime victims, so long that they are discovered in good faith. But prior restraint barring the publication of a sexual crime victim’s name does not inherently hurt a journalist’s ability to relay facts of a crime and thus inform readers about public business. In fact, those Georgia and Florida laws discussed in Florida Star and Cox barring for the publication of the name of the victim of a sexual offense protect the public from future crimes.

Allowing for prior restraint, many argue, would surely create a hostile environment for the press reporting on sensitive government issues. In an effort to avoid this so called “chilling effect” of the press, the U.S. Supreme Court has given them almost free reign to publish responsible and truthful journalism. Justice Oliver Wendell Holmes explained in his opinion of Schenck v. United States, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic…The question in every case is whether the words used…create a clear and present danger.” The final phrase has been widely interpreted, but I believe that there is a “clear and present danger” in allowing alleged rapists and sexual offenders to walk because victims are unwilling to testify and face public scrutiny through the press. Though Karen DeCrow, former president f the National Organization for Women, argued that printing victims’ identities “pull[s] off the veil of shame” of being raped or sexually abused, this shame could also be alleviated through awareness campaigns — without forcing victims to become part of a solution to a larger societal problem.

Passing by any newsstand, it’s obvious the public is interested in sex: Celebrities’ relationship status and one night stands are a staple of many magazines and newspapers, which no doubt cover such affairs to make money from an eager public. But readers don’t always enjoy innocent dalliances and happy endings, and many stories include violent sexual abuse and rape. While prior restraint is shameful in most cases — the public has every right to know the inner-workings of their government — knowing whom “Victim 1” is not necessary to foster public discussion. The First Amendment states, “Congress shall make no law…abridging the freedom of speech, or of the press,” but this isn’t meant to protect journalists from disclosing an individual’s private information — most of all about their sexual lives, and especially when sex involves a crime.

 The above is an op-ed assignment for Journalism Ethics and First Amendment Law.

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