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Who’s Scorched?

Posted by Rick · January 19th, 2004 · 1 Comment

Two Colorado state legislators want to pass laws that afford protection for those who claim to have been raped from having their identities publicly broadcast.

“Sooner or later, the identity of the victim will get out. To try to enforce a scorched earth policy against anyone disclosing the name really doesn’t make a lot of sense,” Kelley said.

Frankly, it seems to me this shouldn’t even require a second thought in a civilized country. On the other hand, if this were a civilized country, there would be no need for such a law.

Anyone who has read my blog for long knows that I’m probably destined — at least by temperament — to be a defense lawyer. Yet, the question of Kobe Bryant’s innocence or guilt vis-à-vis these accusations of rape is not relevant to the question of whether the potential accuser deserves some anonymity. Our modern always-connected world has made it particularly difficult to keep one’s private life private. Yet Kobe Bryant has chosen to be a public figure. His alleged rape victim has not. Mr. Bryant may very well be fighting the fight of his life to stay out of jail, but that does not justify his alleged victim being required to fight for her very life.

To enforce a scorched earth policy against anyone disclosing a potential crime really doesn’t make a lot of sense.

Categories: Law and Legal Issues


1 response so far ↓

  • 1 abi // Jan 20, 2004 at 1:37 am

    Here in the UK, we have very strict laws about releasing the name of a rape accuser. To do so is contempt of court, and the judges are Not Amused. However, in cases of spurious and truly malicious accusations, the judge may lift the protection of privacy after an acquittal. It’s a fine balance to strike between encouraging victims to come forward and covering malicious accusations with a legal blanket. I’m not always sure the courts get it right.

    One problem is, with a high-profile case, that UK law doesn’t apply to media in other countries. And with the proliferation of web editions of papers, the information is available to people in the UK anyway. Not that that’s an excuse for lifting those rights to privacy that the courts can enforce, but it does create a limit to those rights.

    The current debate here (for a year or two now) is whether rape *accused* should also have the right to privacy. There have been some well-known accused people who have been acquitted, but have had their reputations ruined by the very accusation. (And, by the way, I find it reassuring that an accusation of rape *can* ruin someone’s reputation. ‘Twas not always so.)

    How does the accuser’s past sexual history factor into this in US law? Here in the UK, a defendant can query it, but since the accuser is anonymous, the loss of reputation is (in theory) limited to the people present in the courtroom. Thre are moves to allow the prosecution to query the defendant’s past history if he chooses to query his accuser’s…sort of a Mutually Assured Destruction in court. In a system where the accuser’s name comes out, I would suspect the threat of certain lines of enquiry on the witness stand would be even more of an intimidation to coming forward.

    The other major debate in UK rape law is whether a defendant representing himself in a rape case may question an accuser about the rape itself. There have been a number of recent cases where the accused has done so, clearly enjoyed subjecting his victim to the trauma of re-living her experience, then turned round and pled guilty. I suspect the recent trend by judges of not reducing the sentence if the guilty plea is entered too late (ie, after such an event) may curb this practice, but there has also been a proposal to force the accused to question his accuser through an attorney, or through the judge, in such circumstances. I don’t know how I feel about this – we must be careful about limiting the right of the accused to confront his accuser.

    Somewhere in this maze of anonymity vs exposure, questions on past histories, and balancing the rights of the accused and the accuser, lies justice. Reading the Kobe Bryant coverage, looking at comparable cases here, I do think we’re closer to it in the UK than in the US.

    Sadly, we’re not perfect on either side of the Pond…

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