Dave Eberhart, NewsMax.com
Friday, July 25, 2003

Back in 1991, when allegations of rape haunted William Kennedy Smith, two major press outlets – NBC News and the New York Times – saw fit to break with journalistic standards and release the name of Smith’s accuser.

At the time, critics of NBC and the Times said the release of the name was no surprise from liberal media outlets that had long been sympathetic to the Kennedys.

But today, NBC and the Times are not releasing the name of Kobe Bryant's accuser. In fact, the Kennedy Smith case was the only time these major media outlets revealed the identity of a rape victim.

And Thursday night, when NBC News featured the Kobe controversy and the media’s no-name policy, reporter Brian Williams conveniently failed to reveal that NBC itself had made public the alleged victim’s name in the Kennedy Smith case.

But that fact didn’t stop NBC News from joining in critical press coverage of Tom Leykis, host of a radio talk show based in Los Angeles and heard on 60 stations around the country, who has revealed the name of Bryant’s accuser.

Leykis has been bandying her name around for days under the refrain: “We’re told that rape is violence, not sex, and if that’s true there’s no reason she should feel shame or embarrassment.”

To those news consumers who stick to the mainstream media, rape suspect Kobe Bryant’s accuser remains a nameless and faceless “19-year-old woman.”

Others, however, who dig into the Internet jungle will eventually dredge up a name, address, telephone number and e-mail address – as well as a collection of pictures that may or may not be the alleged victim. In fact, a woman who has been reportedly misidentified on the Internet as Bryant’s accuser has hired an attorney.

Now that the cat is more or less out of the bag with the Leykis disclosure, why haven’t the general media floodgates opened? The answer is not easy – any more than constitutional law is easy.

Involved is a multi-layered, shaken-not-stirred cocktail of freedom of press and speech, state laws, federal statutes and Supreme Court rulings – blended with equal measures of tradition, basic decency, fairness and a dash of Common Law.

The William Kennedy Smith Case

In April 1991, following a woman’s allegations that she had been raped by Sen. Edward Kennedy’s nephew William Kennedy Smith, NBC News, in a controversial move, defying a time-honored tradition in the mainstream media, reported the name of the alleged victim – without her consent.

Hours later, the venerable New York Times also published the woman’s name, asserting that the NBC disclosure had already made her name public knowledge.

To this day, some folks mistakenly wholly credit the Times for the disclosure – a conclusion that the Times public relations folks were quick to qualify to NewsMax.

“Our decision engendered a national debate [not to mention a national backlash]," said Michael Gartner, then president of NBC News, who made the decision to go public with the victim’s name after long – but not necessarily democratic – deliberations with his news staff.

“Rape is rarely a national story. If another rape becomes a big story, we will have the same debate again. The position at NBC News is this: we will consider the naming of rape victims or alleged rape victims on a case-by-case basis,” Gartner concluded.

Brave words in 1991, but the world has turned around many times since then, becoming kinder and gentler and more protective of crime victims with each revolution.

Or has it?

Placed in historical prospective, the Smith accuser name disclosure appears to be an anomaly, perhaps even the classic exception that proves the rule.

And, according to all the best evidence – as silently embodied in the NBC News and the N.Y. Times’ nameless-victim coverage of the Kobe affair thus far – an exception not likely to be repeated.

Why not repeated? There appears to be more than a desire not to reprise the furor from the 1991 disclosure at work. Perhaps Bryant doesn’t have well-placed friends at such outlets as NBC and the Times – friends who would have the accuser’s name front and center, and let her suffer some of the same humiliation Bryant has suffered as the accused.

Back to Basics

Folks who teach journalism at such hallowed halls as Columbia University say that not disclosing the name of the rape victim unless given consent is a matter of policy and tradition – not law. In fact, only two states, Florida and South Carolina, still outright prohibit the publication of rape victims’ names, and the future of those laws is uncertain.

But no exhaustive discussion, democratic or otherwise, of the rape victim name disclosure issue can dismiss the law outright. Today, all 50 states have passed some form of a statutory crime victims’ bill of rights, and 29 have amended their constitutions to include rights for crime victims.

At the federal level, the Victims’ Rights and Restitution Act of 1990, along with other laws, gave victims of federal crime many of the rights accorded at the state level. Many of these statutory provisions touch and concern the victim’s right to – and, indeed, need for – privacy.

A case that happened in Georgia in August of 1971 helps explain where things have settled today.

In that case, a 17-year-old girl was raped and did not survive the incident. Six youths were indicted for her rape and murder. While the trial was pending, the victim’s name was not released to the public. There was a state of Georgia code that “makes it a misdemeanor to publish the name or identity of a rape victim.”

In April of 1972 the youths appeared in court. During the proceedings, a reporter covering the incident learned the identity of the victim from official court records open to the public – and published it. The parents of the victim sued, etc.

The U.S. Supreme Court eventually decided that while the actions of the broadcaster who releases the name of a rape victim may be insensitive to the family, the broadcaster is still protected by the First and Fourteenth Amendments. Civil liability cannot be placed on the shoulders of the media when the information is obtained legally, and from official and public records.

And therein lies some of the rub in the Kobe Bryant affair.

Research by NewsMax of Colorado law (the venue of the alleged offense and the looming criminal trial) indicates that the name of a rape victim in Colorado, by statute, may be shared only with the defense team, the prosecutor and the victim-witness folks responsible for the well-being of the victim.

Ergo, the media would not be able to obtain the accuser’s personal information from “official and public records.”

Michael Gartner optimistically said, “[P]roducers and editors and news directors should make editorial decisions; editorial decisions should not be made in courtrooms, or legislatures, or briefing rooms – or by persons involved in the news.”

In the real world, you can never be wholly rid of the lawyers, judges, lawmakers and fine print when it comes to public policy decisions as delicate and perhaps profound as keeping the faith with the hapless victim of rape.

Read more on this subject in related Hot Topics:
Media Bias

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