Should This Woman Be Named?

By MARGARET CARLSON

In Palm Beach the identity of the woman who accused Ted Kennedy's nephew, William Kennedy Smith, of rape has been no secret since shortly after the alleged Easter-weekend assault. Her name and address have been so widely circulated that dozens of journalists have been staking out her home in nearby Jupiter for weeks. On April 7, her name appeared in London's Sunday Mirror. Yet the police and U.S. news organizations, following a long tradition of protecting the anonymity of rape victims, had declined to disclose it. Then last week the Globe broke the taboo.

The Globe is a supermarket scandal sheet published in Boca Raton, Fla. Its editor is Wendy Henry, who was fired by a London newspaper for running photographs of young Prince William urinating in a park. Since the tabloid's pages are mainly devoted to lurid tales of purported affairs and the diets of various celebrities, its stories are rarely picked up by the mainstream media. But on the day after the Globe printed the victim's name and high school yearbook photo, NBC Nightly News broadcast a report on the disclosure.

"While Smith has become a household name," Tom Brokaw intoned, "the identity of the woman has been withheld by the media until now, and this has renewed the debate over naming names of rape victims." The subsequent report not only renewed the debate but went a long way toward making her a household name as well.

The morning after the NBC broadcast, the New York Times included the woman's identity in a long profile so unflattering that it could serve as a brief for a defense lawyer trying to discredit her. A story naming the victim appeared in the Des Moines Register, which two weeks ago won a Pulitzer Prize for telling the story of a rape victim who, unlike Smith's accuser, wanted to have her story told. Other publications piled on.

But many leading news organizations, including ABC, CBS, the Washington Post, Los Angeles Times, Boston Globe, USA Today and Associated Press, declined. So did the New York City tabloids that have been flogging the story hardest. The New York Post, which ran a story 12 days earlier with a large (and inaccurate) headline blaring that TEDDY WORE ONLY A T-SHIRT, took a lofty stance. The woman, declared editor Jerry Nachman, "ought to be able to $ go into Bloomingdale's a year from now and pay for her purchase without having the sales clerk say, 'Oh, you're the girl who was raped in Palm Beach.' " Even National Enquirer editor Dan Schwartz solemnly announced, "I think we took a more ethical stand than ((the New York Times))."

Beneath the fog of high-minded arguments put forth by those for and against naming, it was sometimes difficult to know precisely what was being debated: the right to privacy, freedom of the press, the most effective way to prosecute sex crimes, pumping up circulation, or all -- or none -- of the above.

Take the case of NBC News. Some feminists argue that withholding the names of women who have been raped subjects them to a second brutalization by reinforcing the suspicion that they are "damaged goods" who somehow invited their attackers to assault them, a rationale shared by NBC News president Michael Gartner. "By not naming rape victims," he said, "we reinforce the idea that there is something shameful about it."

But if naming the woman was in the best interests of rape victims, why did NBC wait for the Globe to publish it first instead of breaking the story on its own? Gartner dismisses the timing. "We've been thinking about this issue for a long time. We didn't broadcast the name because of the Globe."

New York Times assistant managing editor Allan Siegal gave a different explanation, saying that once the woman's name had been broadcast nationally, continuing to withhold it would be "an empty gesture." Siegal argues that the Times had the obligation of "telling our readers what we know." Thus the newspaper had no choice but to include the woman's name in a long article describing her "little wild streak" -- speeding tickets, an affair with the son of a once prosperous but now bankrupt Palm Beach family, a daughter born out of wedlock and poor grades in high school.

But the Times did not apply the same standard to another highly publicized sexual assault, the rape and near fatal beating of a jogger by a mob of teenagers in Central Park two years ago. In that case, unlike the Palm Beach incident, the victim's name was available in official documents. It was published by a local weekly, broadcast on a local TV station and featured on placards of protesters who claimed that the defendants were being railroaded. Yet in dozens of stories the Times never published the jogger's name.

One crucial distinction between the two cases might be that the Central Park incident was a random, violent attack by strangers and the other could fall into the murkier category of date rape, in which the victim and her alleged assailant know each other. Susan Estrich, who teaches law at the University of Southern California, contends that reporting the name in the Palm Beach case and not in the Central Park jogger case proves "how much acquaintance rape is still not considered to be a real rape." Date-rape cases can be messy: Was it an unambivalent lack of consent, or mixed signals, next-day regrets, confusion from large amounts of alcohol? When a charge is made and there is no clear-cut physical evidence, determining whether a crime has been committed can come down to the victim's word against that of the suspect, whose name is known to the police from the time the event is reported. When the suspect is famous, like William Kennedy Smith, his name is splashed across front pages from Florida to Alaska even though he has not been charged with any crime. Smith may well be exonerated in court, but he will never get back his reputation.

At the risk of looking silly by not mentioning a name now widely known, many news organizations nonetheless decided to adhere to their long-standing policy, which is based on the belief that naming rape victims not only subjects women to public humiliation but also discourages others from coming forward, an opinion widely shared by police, prosecutors and rape counselors. A Senate committee found that while 100,000 rapes were reported last year, up 6% from 1989, as many as 1.9 million still go unreported. The most vocal critics of the disclosure this week fear an increase in underreporting. "Just start publishing and broadcasting their names and addresses. That'll do it," said Ann Seymour, a spokeswoman for the National Victim Center.*

The law is not much help in resolving the controversy. Since 1976 Britain has prohibited naming victim or defendant unless the press can convince a judge that such a ban imposes an unreasonable restriction. In the U.S., 21 states and the District of Columbia have laws protecting the privacy of crime victims. In 1989 the U.S. Supreme Court overturned a lower court ruling that awarded $97,500 to a rape victim whose name was published by the Florida Star on the ground that the information had been legally obtained from police records. Florida's law, passed in 1911, is of such doubtful constitutionality that Palm Beach County state attorney David Bludworth has asked for a declaratory ruling on whether he can press charges against news organizations that have gone public with the woman's name in the Palm Beach case.

Ultimately, naming victims may turn less on its legality than on whether secrecy is viewed as a misguided form of protection that perpetuates the victim's sense of shame. Estrich, who was raped in 1974, wrote a book about her ordeal in 1987 in the hope of persuading other victims to come forward. But like most feminists, she vehemently opposes the "outing" of rape victims without their consent. "It serves no purpose," she says. "Has the public gotten any more information it needed? The answer is no. Has a woman been branded and humiliated, her ability to go on with her life, to order a pizza, go to the hairdresser without being known as 'that woman' been permanently changed? Yes."

Estrich's view is powerful because it recognizes an unpleasant reality: though the public's perceptions are rapidly changing, rape is still regarded as different from other crimes. The worst that is said about someone whose home is burglarized after the door was left unlocked is that the victim was careless. With rape the all-too-common impulse remains to impugn the victim's moral character. Courts have come to outlaw testimony about a rape victim's sexual history unless it can be shown that the evidence has a direct bearing on the assault in question, but there are no such restrictions on the press. In the Palm Beach incident, it may be too late to repair the damage from having named the alleged victim and the suspect. But at least the case does present an opportunity to rethink the issue.

FOOTNOTE: *TIME has respected the privacy of rape victims in the past, including those in the New York City jogger and Palm Beach cases, and will continue to do so unless a compelling argument to the contrary exists.

With reporting by Robert Ajemian/Boston and Leslie Whitaker/New York