Anonymity for Sexual Assault Victims

There has been discussion going on about recent rape cases in India and Pakistan where the media did not behave as responsibly as it could. The following article,

although it deals with some old issues, still raises relevant legal points
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We had found the perfect poster woman for rape in Pakistan: a married, educated, professional working woman, living all by herself, brutally raped in the sanctity of her home, immense public uproar, still the rapist at large.

Nice recipe for a juicy news story. No wonder, we were curious. Details about her and her family clogged the newswires. This media frenzy does not stop, as we invade further into private lives.

The media could have handled the Sui Rape case rather differently, with a little touch of sensitivity, perhaps. Responsible societies show remarkable compassion towards victims of sexual assault.

Trisha Meili (victim of New York Central Park Jogger case; 1989) got a far better treatment from the press. She was sadistically beaten, gang raped, sodomized and left for dead while jogging alone at night in the Central Park. It was a random attack by five teenagers, each between fourteen to sixteen years of age, who were later dubbed by the media as the “Wolf pack”. Trisha remained comatose for twelve days barely hanged on to her life but eventually survived. She came out in public thirteen years later, breaking her silence out of her own volition and released a book titled “I am the Central Park Jogger”. All through those years she was shielded from the media spot light by journalists abiding by an “unwritten law” that names of rape victims are not to be revealed.

Despite the highly intrusive media attention in the ongoing sexual molestation case against pop star, Michael Jackson, the identity of the “under age” molested victim remains secret, and for good reason. The victim was at that time, only eleven years old.

Desiree Washington, a 19 year old, Miss Black America contestant, was not that fortunate. Former heavy weight-boxing champion, the famous ear-biter, Mike Tyson was convicted in 1992 for raping her. Media had a ball with that case. Mike Tyson was sent to prison for six years, but Ms. Washington did not fare better, either. She felt being “in prison” herself, continually being "trapped by the publicity surrounding her”. She describes her feelings as “not being able to enjoy her life, having no privacy, and quoting she "can’t heal and she can’t get better”.

Victim privacy issue is a legitimate concern for societies and public use of personal information about the victims in sexual assault cases is carefully regulated. Different countries have enacted common laws to address these concerns, though minor differences exist in the way they are interpreted or enforced.

Under the common law, victim’s privacy in sexual assault cases is guaranteed in United Kingdom. The Sexual Offences (Amendment) Act 1992 reads:
If you have been raped or sexually assaulted, it is a criminal offence for anyone to publish the name, address, photograph or other details, which may identify you.

Many states, in United States, have more or less similar rape confidentiality statutes that restrict the flow of information prohibiting law enforcement and court personnel from revealing the identity of sex assault victims. Thirty-three states, as of now, have such victim rights’ amendments. Failure to abide by these laws could result in a misdemeanor charge that carries fines and jail terms.

The legislative language varies from state to state but overall it carries the same message. The state of Florida was the first to enact legislature to protect the privacy of victims of sexual assault back in 1900’s.

The language of Florida section 794.03 reads:
Unlawful to publish or broadcast information identifying sexual offense victim. No person shall print, publish, or broadcast, or cause or allow to be printed, published, or broadcast, in any instrument of mass communication the name, address, or other identifying fact or information of the victim of any sexual offense within this chapter.

Such identifying information is confidential and exempt from the provisions of s. 119.07(1). This exemption is subject to the Open Government Sunset Review Act in accordance with s. 119.14. An offense under this section shall constitute a misdemeanor of the second degree, punishable as provided in s. 775.082, or s. 775.083.
FLA. STAT. § 794.03 (1995).

It is noteworthy that the earliest version of that law was initially drafted at the beginning of the 20th century indicating thoughtfulness, sensitivity and the level of evolution of the society at that time. The constitutionality of this law has been challenged in the U.S. Supreme court and has been revised/replaced by “Section 92.56”.

In 1909, South Carolina implemented a similar statute:
Publishing name of victim of criminal sexual conduct unlawful. Whoever publishes or causes to be published the name of any person upon whom the crime of criminal sexual conduct has been committed or alleged to have been committed in this State in any newspaper, magazine or other publication shall be deemed guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than one thousand dollars or imprisonment of not more than three years. The provisions of this section shall not apply to publications made by order of court.
S.C. CODE ANN. § 16-3-730 (Law. Co-op. 1994).

The state of Georgia soon followed and enacted a rape victim privacy law that prohibits all forms of "public dissemination" of "the name or identity of any female" rape victim. It reads:
Under the Georgia Code:
It shall be unlawful for any news media or any other person to print and publish, broadcast, televise, or disseminate through any other medium of public dissemination or cause to be printed and published, broadcast, televised, or disseminated in any newspaper, magazine, periodical, or other publication published in this state or through any radio or television broadcast originating in the state the name or identity of any female who may have been raped or upon whom an assault with intent to commit the offense of rape may have been made.
GA. CODE ANN. § 16-6-23 (1994)

More recently, in 1987, Massachusetts’s law criminalized release of the victim’s identity and closed public records of rape. It reads:
Massachusetts’s law: Victim’s name; confidentiality. That portion of the records of a court or any police department of the commonwealth or any of its political subdivisions, which contains the name of the victim in an arrest, investigation or complaint for rape or assault with intent to rape . . . shall be withheld from public inspection, except with the consent of a justice of such court where the complaint or indictment is or would be prosecuted.

Said portion of such court record or police record shall not be deemed to be a public record....
Except as otherwise provided in this section, it shall be unlawful to publish, disseminate or otherwise disclose the name of any individual identified as an alleged victim of any of the offenses described in the first paragraph. A violation of this section shall be punishable by a fine of not less than two thousand five hundred dollars nor more than ten thousand dollars.
MASS. GEN. L. ch. 265, § 24C (1994).

Massachusetts keeps all police reports related to sexual violence as “strictly confidential”. In fact, the state makes sure that the victim’s name is blacked out (“redacted”) in all police reports and court documents.

All, but Massachusetts and South Carolina laws remain in statutes while others are, either challenged, stricken down or replaced by victim right amendments and rape shield laws.
It is interesting to note that in the United States, there is no one common law, per se.

There are, in fact, fifty-one laws, one for each of the fifty states and one Federal law. The press, though restricted by a local state law is nonetheless protected by “freedom of speech” granted to it by the U.S. constitution: The First Amendment: freedom of expression from government interference. The federal constitution simply states that no law may be passed abridging the freedom of the press. On the other hand the local state laws dictate that press or media shall be responsible for “abuse" of their rights.
The rights given under this U.S. constitution allows the press to use the “names of victims” as part of a news record. In practical terms, they are essentially free to report whatever they see fit.

The media, however, prudently exercises that federal latitude given to it by the First Amendment and operates within the confines of the local law with an understanding that its commitment is “moral”, and not legal. Thus, most news organizations in United States "voluntarily" elect not to publish the identities of rape victims, as a matter of editorial policy and not as a matter of law.

No such laws, ethical considerations or guidelines for media exist in Pakistan to safeguard the privacy of the victim of a sexual assault, which is almost always a woman. They are simply left on their own.

Our medieval social structure, in large part, puts the blame squarely on the women in sexual assault cases. The victim instantly becomes a social outcast, shunned by the family and close relatives. The community rejects her as a whole.

Constant re-victimization by the media makes the victims unable to lead normal lives. Most of them get divorced by their spouses. Holding or maintaining a job becomes next to impossible leading to severe financial hardships. Almost all are forced to re-locate or simply choose to go underground.

Social pressures are so intense in some cases that some victims succumb to suicide. Dishonoring “the family” could even potentially lead to “honor killing”. In such cases, disclosure of the name of the victim is equivalent with issuing a contract on her life.

There is no mercy for the defendants in our social system, either. Publishing the name of defendants (99% are male) in sexual assault cases is a decision that should not be taken lightly. Keep in mind that under the rule of law, a defendant has the same legal rights till proven guilty. It is equally difficult for them to get their good names back even when they are cleared of any wrongdoing. They stand to loose their image, reputation, career and often family.

Media must act in a responsible fashion to protect the identity of victims. Avoidance of public scrutiny and undue media attention would greatly lessen the social onslaught on them. The rehabilitation and assimilation back into mainstream of society would be easier. With any luck, they might be able to live relatively normal lives even after the assault.

It is imperative that appropriate legislature be passed in order to protect the identity of victims of sexual assault. Dissemination of personal information, release of which is detrimental for the victim or her family, should be outlawed. Similarly, defendants should not be identified till the formal charges are brought forward or preferably at indictment. A media trial should be avoided at all costs.

Media organizations should formulate internal policies that would prohibit publicizing the names and personal details of the victims. Journalists should ask the victims for their permission to use their names. They should write about the crime, not the victim.

Our society needs to evolve in a meaningful way to shift the blame, stigma, and shame associated with rape from the victim on to the assailant. The victims never asked to be raped in the first place. Why should they be ashamed?