L. Neil Smith's
THE LIBERTARIAN ENTERPRISE
Number 294, October 24, 2004
"Scare the crap out of the statists!"
In Kobe Case, Accuser Is Rightly Identified
Special to TLE
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 Institutea noted journalism education organizationbecause 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 suitone 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.