Rape Victims' Privacy is Matter of Law, Not Shame
source: http://www.womensenews.org/story/law/110119/rape-victims-privacy-matter-law-not-shame
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Naomi Wolf and Katha Pollitt--two leading exponents of women's rights--recently published opposing pieces on whether the women described as Julian Assange's alleged sexual assault victims should be identified in the press against their will in the case against the WikiLeaks founder.
Aside from the fact that the Internet erases any guarantee of anonymity, let's look at why both arguments are missing a key element: constitutional law.
Pollitt, a relative conservative on the issue, argues against disclosure. She emphasizes that it will deter reporting and cause needless harm to people who have suffered enough.
Wolf, plowing a more open field, says all victims should be named because anonymity is a "relic" from a time when women suffered shame for being raped because it undermined her "value" to be known as the damaged "property" of her husband or father. Forced disclosure of victims' identities in rape cases, Wolf says, will promote women's equality by putting that idea to bed.
Here's why Wolf is wrong and Pollitt, though right in her conclusion, like the "tipsy coachman" doctrine that defines meandered reasoning in law, takes the wrong path to get there: Not naming U.S. victims has little to do with stigma, and everything to do with the Constitution.
In a truly just world, no type of crime victim would have their name revealed 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 victims into silence.
It's hardly a gender-specific problem, which disposes of Wolf's argument that concealing the identities of rape victims is a form of sexism.
But there is a valid reason to put a thumb on the scale for rape victims. The very nature of sexual violence, indeed the location of the "crime scene" on a woman's body, is such that a public trial is certain to reveal things that are not only highly personal but likely to be protected by statute, common law and even constitutionally-based privacy rights. Unlike robbery cases, rape prosecutions involve the revelation of things like whether the victim became infected by HIV or became pregnant or had an abortion. Because such facts are highly relevant, they must be revealed during the public trial.
Anonymity policies, therefore, are not about "protectionism" so much as due process. They make up for the fact that disclosure of private facts at trial involving a victim--who is not a party to the litigation and thus cannot even argue against disclosure--causes unavoidable harm to fundamental rights. Anonymity polices mitigate the harm by allowing disclosure of private facts without attaching those facts to a publicly-identifiable individual.
read more at Women's eNews http://www.womensenews.org/story/law/110119/rape-victims-privacy-matter-law-not-...
Aside from the fact that the Internet erases any guarantee of anonymity, let's look at why both arguments are missing a key element: constitutional law.
Pollitt, a relative conservative on the issue, argues against disclosure. She emphasizes that it will deter reporting and cause needless harm to people who have suffered enough.
Wolf, plowing a more open field, says all victims should be named because anonymity is a "relic" from a time when women suffered shame for being raped because it undermined her "value" to be known as the damaged "property" of her husband or father. Forced disclosure of victims' identities in rape cases, Wolf says, will promote women's equality by putting that idea to bed.
Here's why Wolf is wrong and Pollitt, though right in her conclusion, like the "tipsy coachman" doctrine that defines meandered reasoning in law, takes the wrong path to get there: Not naming U.S. victims has little to do with stigma, and everything to do with the Constitution.
In a truly just world, no type of crime victim would have their name revealed 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 victims into silence.
It's hardly a gender-specific problem, which disposes of Wolf's argument that concealing the identities of rape victims is a form of sexism.
But there is a valid reason to put a thumb on the scale for rape victims. The very nature of sexual violence, indeed the location of the "crime scene" on a woman's body, is such that a public trial is certain to reveal things that are not only highly personal but likely to be protected by statute, common law and even constitutionally-based privacy rights. Unlike robbery cases, rape prosecutions involve the revelation of things like whether the victim became infected by HIV or became pregnant or had an abortion. Because such facts are highly relevant, they must be revealed during the public trial.
Anonymity policies, therefore, are not about "protectionism" so much as due process. They make up for the fact that disclosure of private facts at trial involving a victim--who is not a party to the litigation and thus cannot even argue against disclosure--causes unavoidable harm to fundamental rights. Anonymity polices mitigate the harm by allowing disclosure of private facts without attaching those facts to a publicly-identifiable individual.
read more at Women's eNews http://www.womensenews.org/story/law/110119/rape-victims-privacy-matter-law-not-...
