Restraint is essential in covering assaults

The life of the law, as Justice Holmes once said, is experience.

So, too, the life of the media.

And just as there is a well-known legal maxim that hard cases make bad law, there ought to be a journalistic admonition that intensely covered criminal cases involving celebrities spawn dubious recommendations and conclusions by the ream.

That’s exactly what’s occurring in the free-for-all surrounding Lakers star Kobe Bryant and the young woman who has accused him of sexually assaulting her at a Colorado resort. A variety of commentators now are arguing that it is unfair to subject Bryant to the usual pre-trial pillory while his accuser remains unnamed. Others, more thoughtful, contend that the media’s practice of maintaining the anonymity of even alleged victims of sexual assault actually reinforces the penumbra of shame traditionally cast by this crime; simply treating rape as if it were any other crime in which the names of the accuser and the accused are routinely reported would lift the burden from victims’ shoulders.

Clearly, this argument’s fortunate proponents inhabit a sphere in which pure reason and gentle kindness prevail. The rest of us can only sigh in envy and go back to the gritty business of surviving this planet.

Genuine experience is an aggregate of events and individual circumstances from which conclusions are drawn and tested over time. It is the wisdom to be had from what is commonplace, which is why the consensus that grows from shared experience has an authority that transcends mere custom. Recourse to that civilizing authority is one of the things that breathes ethical life into the day-to-day administration of our courts and the production of newspapers and newscasts.

It is, in other words, everything a celebrity trial is not.

A celebrity trial is the legal equivalent of a hothouse. Everything inside is unnatural and exaggerated, and much that goes on around it, including most of the media coverage, is distorted by competitive intensity and morbid curiosity.

Some years ago, when the awesome wreckage of the McMartin preschool case finally collapsed, The Times’ editorial writer assigned to cover legal affairs was asked by his editors to reexamine the entire case and to produce a series of editorials to be grandly titled, “The Lessons of McMartin.” After a bit of research, the writer returned and informed his disappointed bosses that there would be no series.

“Why not?”

“Because,” he replied, “if you take a case involving hideously sensitive and complicated issues, and then at every stage of its investigation, prosecution and trial, everything that can go wrong does go wrong -- you get a big mess. That’s what happened here, and beyond that, there’s nothing more to be said that hasn’t already been said.”

Sometime later, that same writer was assigned to serve as a legal analyst on The Times’ team covering the O.J. Simpson trial. Again and again, wishful editors pressed for “think pieces” on the “trial of the century’s” implications for the criminal justice system as a whole. Each time, the writer and his colleagues told their disappointed bosses that there weren’t any such conclusions to be drawn because the Simpson trial wasn’t like anything that had occurred in a California court in living memory.

Something similar now is going on in Eagle, Colo., and it should not be allowed to overturn years of carefully considered experience that has led the media to restrain themselves from casually revealing the names of women who allege they have been sexually assaulted.

That restraint -- hard won and much argued over -- is, in turn, an extension of decades of work by police and prosecutors who specialize in handling crimes against women.

Like the psychologists and social scientists with whom they work, they are almost universally convinced that violent crimes against women that involve sex historically have been underreported because victims fear the additional trauma of involuntary public disclosure.

Constitutional guarantees of due process and basic fairness obviously require that a person accused of sexual assault and his attorneys have the right to know and confront his accuser.

But unless there is evidence that a miscarriage of justice may be in progress, where is the public interest in disseminating her identity?

Gerald Uelmen, former dean of Santa Clara University Law School, is one of the consciences of the California defense bar. Readers may recall him as the constitutional expert on Simpson’s defense team. To him, coverage of the Bryant case is “a great example of bad journalism driving out the good. The argument being made for revealing this woman’s identity really boils down to: As long as we’re trashing the defendant, why shouldn’t we also be allowed to trash the victim?”

According to Uelmen, “There’s so little restraint on coverage of criminal trials left these days, that lifting what little restraint is left is absurd.”

Speaking as a defense attorney, Uelmen said, “I think there is no doubt that, by and large, shielding the identity of rape victims from publication has been a good thing, though the research actually suggests that rape shield laws are not an unqualified success. The evidence developed recently tells us that there still is just as much unreported sexual assault as there was 20 years ago, when these restraints first were adopted.

“The disincentive to victims coming forward comes from other factors besides having your name or past exposed. I think there’s still a certain trauma that comes from having to go through the process and testify that even anonymity doesn’t ameliorate. There may be a lot of family and social pressure that still has a lot more to do with whether these young women come forward than the rules of evidence ever will.”

What makes the process difficult for these assault victims is that to vindicate their claim, they must get up in front of a room full of strangers and answer questions -- often hostile -- while describing painful facts about sexual violation.

That’s the true burden of being a sexual assault victim who wishes to do her duty as a citizen by aiding the prosecution of a criminal.

How, precisely, will publication of her identity, with its inevitable destruction of her privacy, make that burden any easier to bear?