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Tuesday, May 24, 2011

Naming Names in Sexual Assault Cases

Is the American practice fair?

Should someone accused of a crime be publicly identified by the authorities before conviction? If so, should the accuser be as well?

The arrest in New York of former IMF chief Dominique Strauss-Kahn on sexual assault charges is being handled quite differently in France and America. The French are enraged by Strauss-Kahn’s “perp walk,” the American police practice of parading an accused in public, allowing the media to take photographs and yell questions. In France, releasing images of an accused before conviction violates his presumption of innocence and so is illegal.

Divergent cultural traditions account for the different reactions in the two countries. For one thing, the French are notoriously tolerant of their politicians’ sexual misdeeds, including criminal ones, which are rarely publicized. They are also less protective of accusers; for example, Slate France unapologetically published the name of Strauss-Kahn’s alleged victim. By contrast, the American media have a strong tradition of naming the accused and protecting the accuser.

Culture and the media quite properly evolve their own standards, as do law enforcement, legislatures, and the judiciary. Are there sound legal reasons for publicly identifying or protecting either the accused or the accuser?

Criminal Procedure

Anonymity for either cannot be rooted in an appeal for privacy because a criminal procedure, to be just, must be public and transparent rather than secret. Nor can protection be based on a person’s prominence or other special characteristic because that would embed a double standard into the law, creating legal privileges.

It is an almost universal practice in America for the police to release an accused’s name and to include it in public documents. Indeed, it is increasingly common for the photo of those arrested to be posted on police public websites.

Yet in sexual assault cases the names of accusers are typically withheld. Court documents often refer to accusers as “Jane Doe,” and judges have been known to gag the media.

Two common explanations are advanced for treating such an accuser’s identity so differently: 1) to protect the purported victim from further trauma; and 2) to encourage future victims to come forward. Neither of these rests on theories of judicial transparency or equality under the law. Indeed, they violate them.

Begging the Question

The first defense appeals to compassion: A sexual assault victim should not be brutalized a second time by publicity. This defense fails, however, because it presumes precisely what is in question: Is the accuser a victim? Until a fair trial occurs, it is the defendant, not the plaintiff, who should be presumed innocent, with the burden of proof resting on the prosecution. Moreover if compassion protects the accuser’s identity, then logically it should also protect the accused, who might otherwise be falsely dragged through an ordeal that ruins his reputation.

The second defense speaks to future accusers. If identities are publicized, women will not report crimes such as rape. By lowering standards of accountability, which identification provides, it does seem likely that reports would increase. But how many would be false reports? There is nothing positive about increasing the number of accusations unless they are accompanied by standards to ensure their accuracy and the rights of the accused.

What’s more, an accuser’s anonymity decreases the likelihood of a fair trial. When an accused rapist is publicly named, other victims can come forward and add their testimony. By contrast, when an accuser remains unnamed, witnesses who could discredit her account are unaware of the proceedings.

Equal Treatment under Law

Transparency, equal treatment under law, and a defendant’s presumption of innocence all seem to dictate that both accused and accuser should be identified.

These issues and others surrounding the Strauss-Kahn case will not disappear. Indeed, the case is poised to become more explosive as the accuser herself will likely be harshly judged, at least in Europe.  Strauss-Kahn is prominent in France; as a member of the Socialist Party, he was widely expected to replace Nicolas Sarkozy as president. A recent poll found that 57 percent of the French public believes the arrest is part of a political conspiracy; many suspect American involvement.  The percentage of conspiracy theorists rises to 70 percent among French socialists.

American police would be well advised to avoid further perp walks, the purpose of which does seem to be humiliation rather than justice.

  • Wendy McElroy is the author of over a dozen books on individualist feminism and libertarian history. Her upcoming book, "The Satoshi Revolution," applies the concepts of classical liberalism to cryptocurrency. She has been published by such diverse venues as Penn State to Penthouse, FEE to Marie Claire.