Robin Wallace has a commentary on the Fox News web site about whether or not the media should name the accuser in rape cases such as Kobe Bryant’s. I wonder if Wallace shouldn’t first do a bit more research before writing about the topic. According to Wallace,
Opponents of rape shield laws also argue that victims of other crimes are publicly identified, and that all crime victims make a choice to endure the always painful and difficult experience of the legal process when reporting the crime. Advocates argue that other crimes donÂ’t carry the stigma of rape, and that identifying these victims would stop many women from reporting rapes and sexual assaults.
. . .
Even in a town as small as Eagleton, Colo., — just 3,500 residents — where everyone supposedly already knew who the victim was anyway–they got it wrong. The Kobe Bryant case is actually making the case for rape shield lawsÂ—exhibiting in full ugly reality what happens when the identity of a rape victim is not protected.
Rape shield laws have nothing to do with whether or not the media can publish the name of the accuser. Rape shield laws, instead, govern what sort of information can be introduced at trial about the accuser, especially related to her sexual history. As Vail Daily summed up Colorado’s rape shield law,
The Colorado Rape Shield Statute provides, in relevant part, that evidence of specific instances of the victim’s or a witness’ prior or subsequent sexual conduct, as well as reputation evidence of the victim’s or a witness’ sexual conduct, shall be presumed to be irrelevant except in specifically identified circumstances. Irrelevant evidence is not admissible.
Any law that outright banned the media from naming the accuser in a criminal case would almost certainly be unconstitutional. The media generally don’t name accusers based on their own judgment that it’s generally not newsworthy (though there are occasional exceptions).
The only thing Wallace makes a case for is Fox giving her time off until she comes to the realization that she needs to actually understand a topic before writing about it.
Update: I received an e-mail pointing out that a number of states do have Rape Confidentiality Laws, sometimes included as part of their rape shield laws. First, Wallace was writing specifically about the Kobe Bryant case and Colorado has no such provision to my knowledge. Second, rape shield laws generally refer only to laws shielding testimony, not to confidentiality. Third, the reason more states don’t have confidentiality provisions is that the Supreme Court has already ruled them unconstitutional. A state can order that court records mentioning the name of a victim be kept secret, but a state cannot forbid or punish the media for publishing the name of the victim in a rape case.
No Justice Gained by Outing Rape Victims. Robin Wallace, Fox News, August 1, 2003.