In the explosion of media coverage accompanying Sunday’s judgment against two teenage Ohio student athletes in the sexual assault of a 16-year-old girl, at least one broadcast news outlet aired courtroom footage in which the victim’s name was audible. Her name also has turned up in any number of blogs and social-media outlets.
Is this legal?
The Supreme Court has, in fact, twice spoken to this issue. The Court has said in no uncertain terms that the First Amendment protects the right to publish the names of the victims of sexual assaults (Florida Star v. B.J.F., decided in 1989) and also the names of juveniles (Smith v. Daily Mail Publishing Co., decided in 1979). In these cases, the Court struck down state statutes that made it a crime to publish truthful and lawfully obtained information about minors (Smith) and about rape victims (B.J.F.).
In a ruling that anticipated the Supreme Court’s Smith decision, a New Mexico court ruled in this exact situation — the publication of a teen rape victim’s name in a local newspaper — that the publication was “privileged” because her name was gleaned from public records relevant to a matter of public concern.
There is a widespread misperception that it’s illegal to name either victims of sex crimes or juveniles involved in court cases. The root of this misperception is twofold.
First, it is the near-unanimous professional practice of mainstream journalism organizations not to name victims of sexual assault, unless (a) the victim willingly gives consent or (b) the victim interjects herself into the spotlight in such a way that she has implicitly waived anonymity (for instance, appearing on a talk show).
It is also almost universally the policy of mainstream media outlets not to name those accused of crimes (let alone those victimized) when the crimes are being handled through the juvenile system rather than through the adult justice system — again, unless consent is obtained or unless anonymity is not practically possible (for instance, a young person who commits a crime in front of a large public audience at a televised event).
In the Steubenville case, where the two criminal defendants have already been publicly identified, the only confidentiality concern is for the victim. The concern for privacy is of course greatly heightened when the minor is not the person on trial, and where anonymity may advance the beneficial purpose of encouraging future victims to come forward.
The second reason for the misperception is that many state statutes do impose a requirement of confidentiality on those working in the justice system not to give out records or information disclosing the names of juveniles. And some statutes also give law enforcement agencies the discretion to withhold the names of crime victims from otherwise-public records if disclosure would result in an unwarranted invasion of personal privacy.
These statutes, however, do not impose any affirmative duty of confidentiality on members of the general public or news media (nor, as the Supreme Court has told us, could they constitutionally impose such a duty).
News organizations should of course conduct themselves with decorum and sensitivity that is doubly heightened when a case involves a sex crime and juveniles. But that decision should be guided by principles of ethics and professionalism, not the unfounded fear of prosecution.