"Catch" and release: procedural unfairness on primetime television and the perceived legitimacy of the law.

• Author: Gaeta, Thomas

1. INTRODUCTION

   In a normal, unidentified neighborhood, a nondescript car pulls up to an average house, and television ratings ensue. The car's occupant is waved into the house by a young woman, with whom he believes he has been corresponding for quite some time. The young woman has told him she is underage, and he has made the trip to visit her for sex. Upon entry, he is greeted not with her embrace, but with a steely-eyed reporter who grills him about his behavior before the world. Under the guise of assisting law enforcement and exposing men who deserve the public's scorn, Dateline." To Catch a Predator has caught yet another. After his humiliation, the man leaves the house only to be tackled by waiting police. The cameras catch it all so that, months later, a heavily edited segment may be aired on national television. The same pattern, with minor changes to give the program flavor, repeats itself time and time again.

   This Comment explores possible consequences of this public shaming under color of law. Current scholarship in social psychology illustrates a need for law enforcement to be perceived as legitimate in order to increase public cooperation with the law. (1) This public perception of legitimacy is informed in large part by perceptions of procedural fairness (2) that, in turn, are influenced by comparisons of observed outcomes with moral mandates. (3) A program such as To Catch a Predator, by presenting morally charged antagonists in a format that often precludes criminal prosecution, may result in diminished perceptions of law enforcement legitimacy. Both police and local prosecutors should consider this possibility when deciding whether and under what terms to participate in such programs.

   Part II of this Comment highlights the procedural problems in To Catch a Predator, as well as legal issues arising in stings, generally. Part III reviews some of the social psychological literature on the perception of legitimacy, procedural fairness, and compliance with legal authority. Finally, Part IV examines law enforcement and media interactions in light of this social psychological research and sets out a possible solution for law enforcers who desire to participate in such programs: by maintaining control over the procedures used by media agents, law enforcers can help ensure that the programs ultimately aired present a fair view of legal procedures.

2. BACKGROUND

   1. HISTORY AND FORMAT OF TO CATCHA PREDATOR

      Since 2004, NBC and MSNBC have aired To Catch a Predator on the televised newsmagazine, Dateline NBC (Dateline). (4) This segment, initially a one-off segment on an otherwise unrelated weekly program, received such a large audience response that it was quickly expanded into a regular feature on Dateline and was re-run frequently on MSNBC. (5) The Dateline episodes with To Catch a Predator segments averaged seven million viewers, 13% more viewers than of episodes aired during the same period that focused on other content. (6)

      Each To Catch a Predator segment involves Chris Hansen, a Dateline reporter and producer, working alongside Perverted Justice, a private investigative group, and often local law enforcement to run a sting against alleged sexual predators. (7) This sting is captured for the audience, ostensibly from inception to arrest, and is usually prefaced by narration from Hansen about the dangers of online sexual predation. (8) The program alleges that the sting's targets, alleged sexual predators, (9) initiate contact and solicit sexual liaisons with Perverted Justice volunteers posing online as minors. (10) These predators are given the address of the show's sting house for a planned sexual encounter with the volunteer, still posing as a minor, and a time at which to arrive. (11) Upon arrival, the predators are either invited in by a seemingly underage actor playing the role of the minor the predators had contacted or enter without invitation as directed in their online chat sessions. (12) Rather than finding an underage sexual partner, the predators are confronted by Chris Hansen. (13)

      These confrontations are recorded by cameras hidden in the sting house, allowing Hansen to document them for later airings. (14) In each instance, Hansen has printouts of the predator's chat sessions with the Perverted Justice volunteer in hand and demands an explanation from the predator as to his (15) intentions (16) In the early segments, the predators generally did not recognize Hansen as a journalist, and he opted not to identify himself or the program until several minutes into his conversation with the predator. (17) Once identified, a camera crew emerges, and the predator is informed that his attempted illegal liaison with a minor will be aired on national television. (18) At the conclusion of Hansen's interviews, the predator is allowed to leave the sting house, humiliated. (19) At this point in later segments, local police officers arrest the predator in front of Dateline's cameras. (20)

      After the sting, the segment concludes with an epilogue detailing the legal travails of the predators, as well as their humiliation and suffering due to extra-legal social pressures. (21) If a predator does not show up at the sting house, the program sometimes approaches him at his home or place of work to confront him with evidence of his transgressions. (22) In most cases, such confrontations are not accompanied by law enforcement. (23)

   2. PERVERTED JUSTICE

      Unlike many stings operated solely by law enforcement, To Catch a Predator uses volunteers from Perverted Justice in lieu of trained law enforcement officers to lure predators to the sting location. (24) Perverted Justice Foundation Incorporated, a private, nonprofit group founded in 2003 by Xavier Von Erck, is dedicated to the elimination of the threat of online sexual predation. (25) The group regularly uses volunteers in conducting its own stings, as it does in the To Catch a Predator stings, to pose as underage individuals and engage in sexual conversations with possible online predators. (26) Once they believe they have gathered evidence of a crime, Perverted Justice turns over all chat logs to law enforcement officials who then have the option of pursuing criminal charges against the alleged predator. (27) In the case of Dateline's stings, Perverted Justice shares chat logs with the program and police working with the program. (28) When participating in the show, Perverted Justice volunteers are also responsible for encouraging predators to meet at designated times and places after the predators initiate inappropriate contact. (29)

      In addition to stings, the Perverted Justice Foundation has branched out into other areas of online solicitation prevention. (30) These projects include, for example, a concerted effort of volunteers to pressure corporate interests into making online solicitation of minors more difficult, (31) providing advice and aid to individuals victimized online, (32) and publicizing the identities of individuals caught by Perverted Justice's extra-legal sting operations. (33) While these efforts are no doubt admirable, questions linger as to whether Perverted Justice is the correct group to offer such services, or whether law enforcement would be better suited to doing so. (34)

   3. TO CATCH A PREDATOR CONTROVERSY

      In addition to the general controversy surrounding Perverted Justice, (35) Dateline: To Catch a Predator has itself been the focus of at least two multi-million dollar lawsuits stemming from its stings.

      1. Bartel v. NBC Universal, Inc. (36)

         Until December 2006, Marsha Bartel was a producer employed by NBC Universal (NBC), working primarily on Dateline. (37) She was fired for an alleged breach of contract and shortly thereafter filed suit against her former employer for wrongful termination. (38) Although ultimately the suit was dismissed without any finding of fact, Bartel alleged in her complaint that she was fired due to complaints about rampant lapses in journalistic ethics in To Catch a Predator. (39) Among other allegations, Bartel claimed that Dateline producers were not provided with the identities of Perverted Justice volunteers, (40) that Perverted Justice did not provide complete transcripts to Dateline, (41) and that the targets of the To Catch a Predator stings were "led into additional acts of humiliation ... in order to enhance the comedic effect of the public exposure of these persons." (42) Bartell further alleged that Dateline had breached NBC's Policies and Guidelines by paying Perverted Justice "to troll for and lure targets into its sting thereby giving it a financial incentive to lie to and trick targets of its sting." (43)

         NBC sought dismissal of Bartel's suit on contractual grounds. In its brief, NBC made only one reference, in a footnote, to Bartel's claims about egregious lapses in journalistic ethics on To Catch a Predator. (44) There, NBC stated that such accusations were immaterial to the contractual claim Bartel presented and that the court need not resolve them. (45) It also pointed to numerous awards won by the program but did not address the substance of Bartel's allegations beyond calling them "extreme" and pointing out that "many disagree with her views." (46) The suit was ultimately dismissed for failure to state a claim, and none of Bartel's allegations were explored in court. (47)

      2. Conradt v. NBC Universal, Inc. (48)

         The second major To Catch a Predator lawsuit was filed only a few months after Bartel's complaint. (49) This suit arose from the events of a Dateline sting in suburban Texas where the combination of police overzealousness and media fervor had deadly consequences.

         In early November 2006, only one month prior to Marsha Bartel's discharge, To Catch a Predator ran a sting in Murphy, Texas. (50) This sting went terribly wrong, and the operation is a case study in the pitfalls of combining media with law enforcement. Dateline initially approached city manager Craig Sherwood...