Rape, trials, etc

From Cyberlaw

• A couple ideas arose in the discussion today that I'd like to see what others think about. First what do you think about Wendy Murphy's proposition that the question of anonymity for the accuser cannot at all be compared with the question of anonymity for the accused. Murphy said something to the effect that that the accused has a lower moral status. But is this consistent with the idea the court as a institution of dispute resolution? In essence, one party is saying X, while the other party is saying not-X. From a completey neutral point of view, each party has potentially committed a moral wrong -- either made a false accusation or committed the crime in question. If we really began by assuming the innocence of the accused (not-X), then we would have to also assume that the accuser is the one with shady moral status. Of course, we don't really presume innocence, at least not that robustly. But if we are at least assuming agnosticism about the crime, then it seems that neither party should have a lower moral status. Thus, why is the accused any less deserving of anonymity, at least to the point that the prosecution has made a prima facie case, if not all the way to conviction? If anyone agrees with Murphy on this point, would you be willing to apply the principle more broadly, such that the defense is morally tainted in all criminal cases, and all civil cases, just because someone has accused them? Or is this special to rape? Secondly, Murphy emphasized that by the time a defendant goes to trial, he has had some due process. She kept repeating that it is, "not nothing." This is a rather strange form of argument -- if I stole her car but left one dollar, I could say that it is "not nothing". The question of course is whether it is sufficient and whether any rights are being violated. What do you think? -ctr
  • As that voice from the back row, I did have trouble with the stance taken by Ms. Murphy regarding a different standard being applied to accused confidentiality versus victim confidentiality. Consistently the issue in rape cases seems to be narrowly read as "did he do it or is she lying?" I disagree. The issue is "what happened?" Perhaps if one were to rely on Hale, corroboration, resistance, fresh complaint, etc. standards that no longer exist, I can see her point about the choices being "he did it or she is lying." But we no longer require these things, so the issue, to me, is simply "given she is sworn and believes her narrative (not lying), is there an alternative story that could be told?" Draining oneself from the emotional retorts of "falsely accused" etc., one is left simply with a woman who says she was raped (true), says he did it (she believes this is true)...what can be the response? We accept circumstantial evidence as equal to direct evidence. Should we here? Would it be even more appropriate to do so here? How about this scenario: "I know it was him" yet he was out of town at the time (confirmed)? Do we have to say she was lying? Couldn't we say she was simply mistaken? What about errors in arrest and prosecution? My point was not to say that women are lying. My point was that, with criminal charges, particularly in rape, publicity damages everybody, not just the victim. If the accused is guilty, bring that damage on. But what real benefit do you have as the neighbor of the accused yet un-indicted, or acquitted, knowing that he was charged? Do you think he is more dangerous to you now that he has had a run in with the law, or was he more dangerous when he was anonymous and the state hadn't messed with him yet? I have a problem with a standard that protects "Constitutional rights" (stretching the unwritten right to privacy to the extreme) of the victim while ignoring those same rights when it comes to the accused. To gainsay by stating that the accused is protected by "process" doesn't answer the question. Process protects Constitutioanl rights, yes, but certainly not the privacy rights Ms. Murphy was referring to. Or do we just say, "hey, an arrest means 'something' so kiss your privacy goodbye?'" The victim in Ms. Murphy's scenario is claiming rights violations based on invasion of privacy, not by the rapist, but by society/the state (that's what the Constitution allegedly protects...against the state, not the individual). To say, "you were arrested, we publicized your name, we erred, sorry" does NOT address the very same privacy issues raised re: the victim. Finally, let's look at the media argument: we don't want the victim's name in the paper, or false allegations of sexual activity, etc. raised by the press or defense attorneys. Would that be necessary if the accused were given some anonymity until "something" (per Ms. Murphy) was really there? Does one need to defend oneself to the press if one isn't in the press as an alleged rapist in the first place? And if there is anonymity of the victim and not the accused, do we gag the accused, if he is found innocent, from saying to his friends, co-workers, etc. "I was accused of rape by Ms. Smith?" Do we gag him from telling his story to resolve the controversy? I guess, in summary, I believe that when a contentious issue such as rape is litigated, one has to protect both parties with a presumption of innocence and presumption of truth. Using the bad old days of victim vilification as an excuse for unilateral vilification of the accused is not the answer. Society gains nothing by having remaining questions of innocence or guilt, and both sides lose if that question remains. Until innocence or guilt is determined, perhaps society shouldn't know who the players are. Ask yourself this: of all crimes, which one creates the most discourse and controversy? The fact that rape does means there is something unique about it...that perhaps the approach to it should be different than other crimes. Just some thoughts. sab

• This discussion makes clear that defendants assume a burden once they are charged -- here a burden of disclosure; a loss of privacy. Another very significant burden is the expense of defending ones' self. Given how easily one can be indicted, it is tempting to favor not only privacy for the accused but also government-funded defense attorneys, at the prevailing wage, rather than merley as a stop-gap for the impoverished. Or maybe this becomes a reduction to absurdity of the pro-defendant principles ennunciated above? -ctr
  • Given the potential inflammatory atmosphere that always seems to surround this subject, I just have to respond: CTR, my rant is not "pro-defendant." I seek to question the DIFFERENT treatments of defendants and victims re: anonymity, not pro-defendant but pro-equality...pro-compassion if you will. In essence, I say "publish both names, or publish neither, until we have a resolution." I think you agree with me. So neither of us are "pro" defendant, we're just not "anti" defendant. sab
    • OK -- you can pick your own labels. But for shorthand, I consider that a propsal that tends to benefit the defendant, even if it moves them up to a position of equality, is pro-defendant. (I agree that with LMD that it is not exactly a matter of equality. But I do think it is a matter of justice. It may be that the most just system treats the defendant and the accuser differently.) -ctr

• I agree that a degree of anonymity for the accused could provide some benefits. But I think that an argument of "equality" is misplaced. Without regards to Ms. Murphy's argument about due process, I don't believe that we can equate the situation of a rape victim with that of someone accused of a crime - common sense tells us that they are not under similar forms of distress. [Also, the privacy interest in being accused of a crime and an experience of having your body violated, I would argue, are not comparable.] And as the Kobe Bryant case demonstrates, the accused is not "gagged" from telling his story. In order to make this argument, you need to take it to its logical conclusion - that all defendants receive a certain degree of anonymity. Being accused of many crimes other than rape can be "stigmatizing." The fact that this argument is being made in the context of rape law is important. SAB, do you advocate this point generally? I hope so, because I could understand the argument behind such a point. But making such an argument only in the context of rape cases reveals certain inconsistencies that I do believe point to an approach primarily concerned with the false accusation scenario. If you are not normally worried about the stigma of being accused of a crime, or are only worried about it with regard to the innocent, then you are approaching the problem under the assumption that she is lying or mistaken (either of which, by the way, should be questioned - in what other crime do we so often assume that the victim is lying or mistaken?). I think that attitudes about rape law are informed by fear, as Estrich points out. I don't think that we can ignore the gendered nature of the crime in looking at what interests people are trying to protect in their approaches to the subject. People tend to approach the subject in one of two ways: from a primary concern about false accusations, or from a primary concern that they are likely to be a victim of the crime. Needless to say, the breakdown tends to fall along gender lines. [And I don't think it is wrong or irrelevant to point this out. People do have strong feelings about this issue, feelings informed by their own experience. We need to examine these underlying interests to get to an honest understanding of what we actually want rape law to accomplish.] Since the fear of false accusation is not supported by any empirical study (as Estrich points out), while the likelihood of a woman being sexually assaulted in her lifetime is rather significant, why is so much time and energy focused on the question of false accusation instead of how to improving access to justice for victims? My answer would be because power to control the dialogue is still largely concentrated in the hands of men. A brief glance at the history of rape law supports this. For this reason, I too might advocate for some protection of the names of rape defendants. Because maybe it will remove some of the (largely unfounded) fears surrounding false accusation, and let people focus on the real problem: that too many rape victims never even make it to the justice system. LMD
  • Well said and a nice "higher view" of my point. While I do agree that all criminal defendants should receive some form of preliminary anonymity, my discussion focused on rape for two reasons: one, that was the subject of today's panel discussion and two, today's panelist focused on the rape victim as a UNIQUE type of crime victim. I do agree with her in that respect; it is difficult for me to follow the logic that a robbery victim faces the stigma of a rape victim. I find it just as difficult to believe that a rape defendant faces the same stigma as a robbery defendant. Recall that until recently rape was so heinous a crime as to justify the death penalty. Estrich wrote her article in the late 1980s. Let's not dismiss as "unusual" or "unjustified" false accusations. It is not "unusual" to those who have been falsely accused. False accusation being the defendant is innocent (NOT necessarily that the victim is lying). Everyone seems to know "empirical studies" that show a "rather significant" likelihood of a woman being sexually assaulted. Such studies were questionaires. Not badmouthing this science, but the fact that thousands of men have not been studied re: false accusation means it doesn't happen, or it happens with less frequency than sexual assault. Perhaps this "unfounded fear" of men springs from actual events in other legal realms...like false accusations in divorce or child support hearings? But let's assume it does happen less than sexual assault. Does this mean that men have less need for legal protection, or anonymity, or could it mean that there is a subset of men who do the assaulting while the rest of us are "OK?" If we are all guilty, which is the background noise that seems to permeate more "colorful" gender discussions about rape, then perhaps we had best do those jury screenings Ms. Murphy talked about to remove those biased women from the jury, don't you think? And while we are at it, I would urge once again not to blur the line between "worrying about mistake" with "worrying about lying." I disagree with you that in other crimes we do not "so often assume that the victim is...mistaken." Of course we do! That's why there is a reasonable doubt standard, etc. So that leaves the argument that in no other crime do we worry about the victim LYING. To that I refer you to my focused argument about rape: if (and only if) we treat the victim with greater care and compassion given the circumstances, then we should just do that out of compassion...without having to justify doing so by referencing now archaic laws that treated women as suspected liars AND without treating the defendant worse than a defendant who commits any other crime. It boils down to this with me: if you make up for a past of racism by being racist, or a past of sexism by being sexist...if you perpetuate the very stereotypes that have hurt groups in the past, but this time with the justification for "making up" for the past by perpetuating them on that "hands of men" society you speak of, you are really doing a disservice to forward progress. As for that "hands of men" dialogue, it's late and I won't open that can of worms. Let's just say that in my criminal law class, the "dialogue" that surrounding rape consisted of crickets chirping when any man was asked his opinion of this heinous crime. Not because we were guilty, or had nothing to say, but because backlash awaited anyone who dared give any other opinion than "man accused, man guilty, case over." It is that form of "dialogue" that I have attempted to calmly deflect away today, even when I appealed to Ms. Murphy for some form of equality of compassion (sadly, my "logic was simply wrong"). The fact that we are having a real dialogue here is a good thing. sab

I'm conflicted about this. One one hand, it DOES seem unfair that the stigma of having been accused of a crime should attach to someone who for legal purposes is innocent -- and who may be innocent in truth (if one can ever use that word in our postmodern age). One of my pet peeves is that most law school applications require applicants to list arrests, regardless of disposition, and sometimes even where the record has been sealed or expunged. On the other hand, the public safety argument is persuasive. If someone has been arrested for -- but never convicted of -- sex assault on a child on, say, two or three separate occasions, would we want him to be hired, unwittingly, by a daycare center or a summer camp for developmentally disabled children? Would we want someone with a similar history of rape charges to be employed as a guard at a women's prison? (KTB)

The system has a lot of protections for the accused built into it. Plenty of people are acquitted who are in fact guilty. Our system is expressly designed for this result. This translates into a willingness to tolerate the fact that many victims are never vindicated by the criminal justice system. So, maybe it makes sense to have a commensurate level of tolerance for the fact that some people will be arrested, and suffer some stigma, despite being innocent.

• • There certainly is that tolerance for letting some guilty go free. But the problem with stigma = half-truth or partial truth or could be true is that it closely resembles stereotypes. "Men are better than women" is not a true stereotype. "On average, men are physically stronger than women" is true. So we need to avoid the subset of truths that bear absolutely no risk or controversy to society. How does the criminal justice system do this? In many states, if you are arrested but not indicted (warrant goes out, Grand Jury defers) you CAN expunge the records, and those defendants, since they even lacked probable cause by definition for the arrest, shouldn't be labeled and privacy invaded by that good ol' "public safety and welfare" club of ambiguity. For the rest who have probable cause, one leaves it to the public or the media to look up such records. Or do we want a sign in the yard? "I was arrested but not convicted for ___." Then you get the convicted: all bets are off. I specifically asked Ms. Murphy about the dropped charges scenario yesterday to make her define the starting point where the defendant starts his downward spiral in the public eye. And for the record, I dislike guilty defendants like everyone else does. Perhaps I despise government intrusion and abuse of discretion more than most. It is the latter case that Prof. Nesson may have been referring to yesterday when he asked "what if this had been a jury trial and not a judge trial?" On a 12 member jury, with its combined experiences, hopefully all of this would be taken into account. Suspicion of charges, suspicion of men, suspicion of mis-identification, circumstantial evidence, etc. Ms. Murphy's "screening" questions for what I guess she would call "woman haters" would seem a waste of time: what person is going to self-identify as a woman hater? What woman is going to self-identify as a man-hater? You simply cannot get a pure jury by asking such loaded questions. And do you even want one?

I'm having a hard time understanding parts of your post, and also whether all of that last post was meant to be responsive to my post. Could you please clarify exactly what policy you're suggesting we pursue? Is it that we have a grand jury indictment process in all states for certain offenses? (KTB)

• LMD -- regarding your idea that "there are no empirical studies" supporting the fear of being falsely accused. What kind of empirical study could possibly show that? What would be the threshold for significance? I suppose you could go survey all men who have ever been accused of rape (many of which are now in prison) and ask them whether they were falsely accused. I suppose that the results would be pretty striking, but that's apparently not what you have in mind. No such survey is going to help us here, because we DON'T KNOW which accusations are false. Aside from empirical studies, I think that you have to concede that fear of false accusation is reasonable given the legal standard that Murphy kept emphasizing -- i.e., one person's testimony, with no other physical evidence or corroboration, is legally sufficient to convict for a felony. But this really isn't about fear -- it is about justice and fairness, in a legal culture which is committed to a presumption of innocence. LMD and Murphy seem to share an argumentative strategy that it is somehow wrong to talk about defendants' rights as long as there are still injustices for women. I'd submit to you that justice requires us to be concerned with everyone's rights, and tactically, we might make better progress for women by advocating the most just system as a whole. Its not an either-or. It's an and-both. -ctr

• • First, I would like to suggest that everyone posting please put some sort of identification on their comments (initials are fine), if only to make it clear whether or not these various comments are coming from one person/different people, etc. Second, I would like to make the point that many of the responses to my comment imply that I have certain attitudes that I never expressed. For example, that I view all men as rapists, or that I think it is wrong to talk about defendant's rights. I never expressed either of these views, instead, commentators seemed to have jumped to this conclusion based on the ideas represented in my comment. That commentators reacted in such a way to my comment demonstrates to me the continuing trend in classroom discussions of assuming that people who discuss rape law from a certain perspective (which for me is that of someone more likely to be raped then to be accused of rape) are men-bashing victims' rights advocates. I certainly don't assume that those who indicate concern for defendant's rights hate women or don't care about victims, which seems to be a concern for some, as SAB's comment indicates. As class discussion yesterday and this discussion demonstrate, some of these anxieties over how men will be perceived if they express concern about false accusations have not resulted in any actual lack of this view point being advocated in class. (On the contrary, as I have indicated, many of the comments in class yesterday focused on this topic to the exclusion of other topics.) If, SAB, as you indicate, there were "chirpings" as you say, in your criminal law class, then I have two points: One, analogizing opposing attitudes to the chirping of crickets seems to suggest that these comments lacked actual power (crickets?), and second, that perhaps you should consider why you chose the cricket analogy in the first place. Is it an appropriate label for concerns about being raped and the way that rape victims are treated by the justice system? As to your point about the relative frequency of sexual assaults versus false accusations, check out the fbi stats or doj stats. That so many assaults go unreported, how could the number of false accusations even come close? I have further responses to some of the comments above, but I think that it would be more effective and efficient to have a discussion in person to avoid constant misinterpretation. If any of you would like to do so, I am game (ldamerville@law.harvard.edu).

• • Laura, regarding this concern of yours: " many of the responses to my comment imply that I ...view all men as rapists, or that I think it is wrong to talk about defendant's rights." I don't think anyone misinterpreted you as saying that all men are rapists. But I did interpret the following claim of yours as implying that we shouldn't invest (much or any?) time and energy in worrying about defendants rights: "...why is so much time and energy focused on the question of false accusation instead of how to improving access to justice for victims?" My response was that we should expend time and energy worrying about both. Likewise, nobody has accused you of "man-bashing." I thought we were having a nice, intelligent conversation, and I am sincerely sorry that you feel accused, misinterpreted and/or threatened. -ctr (Christopher Robertson)
  • Laura: crickets chirping is an analogy for silence...like on a summer night. As in "any men have something to say?" response: nothing but background noise of crickets chirping. nothing i have said addressed your stuff...i was mainly addressing Ms. Murphy's ideas. sorry if you took it personally. i'm done with this discourse as it's going nowhere but down, apparently. please re-read my stuff with an open mind. i never denigrated the woman's perspective. all i advocated was that compassion for a woman does not have to be at the expense of a man. it could be an issue of improving communication. everything i've written above has been indicated by sab.

FROM PROF. WENDY MURPHY: Comments and Op-Ed

1-you wrote that my argument that an arrest is "not nothing" is a "curious position" -- or some such phrase implying that "not nothing" is a silly standard. my point was not to define a standard but rather to contrast SOME process with the absence of any process for the victim -- and to emphasize that this disparity is inappropriate even if you ASSUME the victim stands on equal moral footing with the accused (which is inappropriate because the victim clearly stands on a higher moral plane in terms of social harm-doers if what we measure is the comparative weight of evidence of bad conduct - thus, if you were to give one or the other a "better" standard, it should go to the victim -- (let's also not forget that defendants take far harder "hits" to their liberty than being named in the media based on nothing more than an arrest (e.g., temporary (or permanent) loss of liberty, bail conditions).

2-student wrote that being known as an arrested/accused rapist carries an intolerable stigma to the accused -- but there is no real data to support this. to the contrary, studies show the public is irrationally predisposed to disbelieve rape allegations in the post-arrest pre-conviction period because of the myth that rape allegations are disproportionately false -- they aren't -- false allegations are no more common than false allegations of other types of crime. in fact, individuals are more likely to falsely report their own death or stolen property than rape (no surprise here -- the most powerful incentive to lie is money -- and let's be real -- if i'm going to falsely accused someone of a crime out of vindictiveness, e.g., I'd far prefer to claim robbery -- less painful in terms of systemic revictimization)

• You are conflating false allegation and stigma regarding "no real studies to support this." While you may claim "no real studies" to support false accusations (since when is the criminal justice system transparent regarding wrongful arrest, prosecution or conviction...what study could possibly exist? ask the accused?) it is inappropriate to relate such studies to a "proof" of stigma or lack thereof. And you are ignoring a much more powerful stigma, not of public opinion but within the criminal justice sytem itself and re: employment. Cops sure "know who did this," right? Just look at these mug shots! No, THESE mug shots. And if and when you, god forbid, get arrested and are fired, disbarred, had your license stripped...how about that stigma?

should the fact that society harshly judges certain "types" of people trump the public's right to know (which implicates serious safety concerns as well as the defendant's interest in having the media shine a light on the system's handling of criminal prosecutions). Michael Jackson has never been convicted but has a disturbing and credible history of molesting kids. He was NOT entitled to the presumption of innocence in the "real world" for the 1993 case after he paid the victim over 20 million dollars - in exchange for which the child declined to testify (he should have been prosecuted for obstruction of justice AND the child should have been forced to testify -- but I digress) but many people apply the criminal courtroom's standards to their own lives and personal judgments which is why the mother in the 2004 case was so willing to let her child sleep over at Jackson's home where he, too, was molested. Interestingly enough -- the same types who argue the accused is entitled to the presumption of innocence EVEN in the real world, criticized the mother for allowing her child to sleep at Jackson's home. So which is it? Do we insist that people in the real world apply the courtroom presumption of innocence standard and assume NOTHING about the "arrested" or "charged" people -- or do we allow people to use common sense and make their OWN judgments about what to believe, unmodified by the special rules of the criminal courtroom where truth is not always unvelied because of exclusionary rules, evidentiary rules allowing exclusion of relevant though "prejudicial" evidence -- etc. If the former is true, then we would be obligated, i would think, to forbid judgments of people llike the mother who allowed her child to sleep with Jackson because we would be effectively forbidding her access to information about his past violent behavior. Likewise, are we willing to forbid people access to information about the arrested but not yet charged or formally convicted people EVEN in cases where the evidence is overwhelming and the individual demonstrably dangerous? If so, the system may opt to deny bail to many more arrestees until trial because we either have to allow the public to protect themselves or the government has to do it.

in any case -- here's my piece -- all thoughts welcome --

wjm

NAMING RAPE VICTIMS: IT'S NOT THE STIGMA, IT'S THE CONSTITUTION

Every time there's a high profile rape case, a few rogue pundits push the media to identify rape victims, even against their will.

Advocates for full disclosure argue that we may as well reveal the names of all rape victims because we cannot possibly avoid identifying some victims given the inherent difficulty in protecting people like Elizabeth Smart and the nine year-old California girl whose kidnapping was caught on videotape -- both of whom couldn't possibly be shielded because we knew who the victims were before the sexual assaults took place. This is also a problem in incest and domestic violence/sex abuse cases where the very circumstances of the crime tell us who the victim is.

But can we really say that our inability to shield some victims justifies harming all victims? Isn't it better to protect as many people as possible, and apologize to the few that slip through due to circumstances beyond our control?

Some claim we should name victims because we name the accused rapist as soon as an arrest is made -- and sometimes sooner. If this is acceptable despite the presumption of innocence, then it should be acceptable to name the victim.

But being presumed innocent as a matter of law isn't the same as being an innocent victim as a matter of fact. People who have been harmed by sexual violence clearly stand on higher moral ground than those who have formally been charged with a serious felony. Victims and defendants never stand on equal legal footing, which means the law not only can but should treat them differently, with an emphasis on protecting the innocent from needless harm.

Some respond that "protecting" victims is a form of sexism that infantalizes and discriminates against females.

But the policy applies to male victims, too. And while it obviously helps the anti-victim position to characterize the issue this way because it tends to silence women who argue for "equality" by making it appear as though the issue has something to do with "special" rules for girls, the truth is -- policies that protect the identities of sex crimes victims are rooted in the private nature of the violence, not the gender-specific nature of the battered body parts.

In a truly just world, no crime victim would have their name revealed in the media without their consent. This would help redress growing concerns about threats and intimidation tactics from criminals who hope to escape responsibility for their violence by terrorizing a victim into refusing to testify."

Hardly a gender-specific problem.

But there is a valid reason to put a thumb on the scale for rape victims. The very nature of sexual violence is such that a public trial is certain to reveal things about the victim that are not only highly personal but likely to be protected by statute, common law and even constitutionally based privacy laws. Things like the victim's HIV status, whether he or she became infected by a sexually transmitted disease as a result of the crime or whether a female victim became pregnant, had an abortion, etc. All these highly sensitive and per se relevant facts are sure to be discussed in a public trial involving sexual violence - - while none would be revealed if the victim had experienced a different type of violence such as larceny, robbery, assault, etc.

This is not an issue of "protectionist" policy but rather, an acknowledgment that innocent people of both genders have important privacy rights at stake in sex crimes cases. These rights should be respected by rules that insulate victims from harm that would otherwise disproportionately affects certain types of victims simply because they had the misfortune of being targeted for the most intimate of violent acts.

Not identifying rape victims also encourages reporting and victim participation in the process of criminal justice. In turn, such policies help deter sexual violence, punish dangerous offenders and promote civility.

The media's shield policy should not be blown out of proportion as some sort of insult to first amendment principles. The public's right to know, especially about criminal justice matters, is indeed important. But the media exercises restraint on all sorts of issues - - like not revealing names of juvenile offenders - - or people with HIV. The media even declines, on moral grounds, to publish photographs of people in certain circumstances where to do so might be exploitive. There can be no legitimate claim of moral superiority such that the well-being and privacy of innocent victims of sexual violence can be subjugated to these other interests.

Some people argue that a "shield" policy is designed to prevent "stigma" and that there is no stigma for rape victims in today's society. The same folks will argue that it is actually more stigmatizing to hide victims' identities because it perpetuates myths and ideas in culture that victims deserve to feel ashamed.

One need only examine the coverage of the Kobe Bryant case to know that rape myths are alive and well and that victims are stigmatized as much today as thirty years ago. Indeed, the problem may be worse today in light of new technology that facilitates quick and widespread disclosure of private, irrelevant and even outright false information (e.g., that the Bryant victim had sex after the crime and before going to the hospital).

Stigma is clearly still a problem. A 1992 national study cited fear of being blamed and fear of being shamed as the top two reasons why victims refuse to report sex crimes to police.

But stigma is not the only issue, and as long as we are misled to believe it is, there will be a push to undo the "shield" policy every time there's a high profile rape case and someone in a position to speak publicly argues that we have evolved to a point where we no longer blame and shame victims.

Even if that day comes, which is doubtful in a culture that celebrates sexual entitlement far more than mutual respect, this is not a dispute rooted in temporal stigma, alone. It is a fight to protect important privacy rights, the well-being of innocent people and the overall integrity of the criminal justice system.

This debate poses a challenge to all media: that they not only embrace the value of restraint on this important issue but always tell the truth about the nature of the debate. This is not about using the press to help "liberate" women from the chains of shame through public identification of rape victims. It is about the harm that will befall all of us if sex crimes victims are ensnared by the Hobsonesque burden of choosing between justice and dignity.

Wendy J. Murphy, J.D. New England School of Law 154 Stuart Street Boston, MA 02116

• Even Roe crafted a "privacy" right in deference to the fact that abortion eas an issue between private parties: doctor and patient. Such is the Griswold legacy (bedroom in that case). This is a State v. defendant issue. There is NO Constitutional basis for your argument. You are asking for a privilege of confidentiality, plain and simple. I may agree if you didn't cloak your points in the Constitution. But maybe not: trials are for the public to learn a legal rule. The unknown victim, behind a screen, doesn't develope the best narrative. It also could ruin your case against the accused. A woman who comes forward is more credible to a jury, like it or not.