UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 20, No. 2WINTER 1997
ARTICLE
Protecting Child Sex-Crime Victims: How Public Opinion and Political Expediency Threaten Civil Liberties
Michelle Johnson(fn*)
Introduction
While members of the journalistic and legal communities have debated for more than two decades whether or not the news media should publish the names of sex-crime victims, the level of discussion has increased in the last decade.(fn1) The Des Moines Register's receipt of a Pulitzer Prize for a series of articles in which a rape victim was named and photographed,(fn2) as well as public criticism of the New York Times for its profile of Patricia Bowman, who accused William Kennedy Smith of rape,(fn3) have helped propel the issue to the forefront of journalists' discussions about ethics.(fn4) Both journalists and their critics tend to focus on what journalists should do after they acquire victims' names. Some commentators say journalists should publish sex-crime victims' names because doing so promotes truth and helps reduce the stigma of the crime.(fn5) Others say journalists cannot write about sex-crime victims without tainting them, consequently making future victims reluctant to report the crimes against them.(fn6)
The matter of what journalists can do was largely settled in the 1970s, when the United States Supreme Court held in Cox Broadcasting Corp. v. Cohn (fn7) that the media could not be punished for printing the names of sex-crime victims when reporters obtained those names from public court documents.(fn8) The Cohn Court held that official court records are of public interest and that the public benefits from the reporting of true contents of these records.(fn9) The press should therefore not be punished for merely republishing information already available in court documents. The Court stated:We are reluctant to embark on a course that would make public records generally available to the media but forbid their publication if offensive to the sensibilities of the supposed reasonable man. Such a rule would make it very difficult for the media to inform citizens about the public business and yet stay within the law. The rule would invite timidity and self-censorship and very likely lead to the suppression of many items that would otherwise be published and that should be made available to the public.(fn10)
In 1989, the U.S. Supreme Court qualified the Cohn decision, holding that absent a "state interest of the highest order," the press could not be punished for publishing sex-crime victims' names (or other truthful information) when that information was legally obtained.(fn11) The Court did not explain what might constitute a "state interest of the highest order," and thus far, no court has articulated a circumstance which meets that criteria.(fn12)
However, the courts have not left sex-crime victims completely at the media's mercy. The U.S. Supreme Court has held that "[w]here information is entrusted to the government, a less drastic means than punishing truthful publication almost always exists for guarding against the dissemination of private facts."(fn13) While the state in most circumstances cannot keep the media from publishing sex-crime victims' names once reporters have obtained them, it may make a reasonable effort to prevent reporters from acquiring those names.(fn14) Accordingly, nearly two dozen states have attempted to protect sex-crime victims' privacy by enacting legislation that allows public officials to withhold information about the victim from the press and public.(fn15) These laws vary in scope. Some protect sex-crime victims' identities during all stages of the police investigation and judicial proceedings;(fn16) but many apply only to certain public documents or only until the victim testifies at trial.(fn17) In four states, the law only protects child sex-crime victims' identities.(fn18)
This Article looks at the enactment and subsequent nullification of a 1992 Washington law that state legislators intended to protect the privacy of child sex-crime victims.(fn19) The Article uses this statute to illustrate that through the enactment of such statutes, politicians may sacrifice constitutional rights, such as freedom of the press and access to government proceedings, in order to achieve short-term political gains. Therefore, because it is somewhat less affected by elections and the political process, the judiciary is often the only branch of government responsible for protecting civil liberties. In the case of Washington's law on access to child sex-crime victims' names, politicians sought to curry favor by eliminating public and press access to court proceedings. Washington courts blocked the legislators' efforts, in the process issuing important statements about the value of openness in government.
Part I of this Article provides a history of the controversy in Washington over the Shelton-Mason County Journal's publication of child sex-crime victims' names. Part II explains how this controversy led to the passage of a victim identification law that eliminated public and press access to court proceedings and documents in cases involving child sex-crime victims. The passage of this law resulted in a lawsuit by Washington media, who claimed their ability to monitor and report on court proceedings was severely damaged. Part III discusses the media's lawsuit. Part IV explores the Washington Supreme Court's rationale in overturning the victim identification law, reviewing precedents and detailing the court's decision. Finally, Part V of this Article discusses the historical importance of access to government proceedings and documents and explains why the judiciary historically has been more protective of the right to access than the legislature.
I. A Brief History of the Conflict in Mason County
The Shelton-Mason County Journal (the Journal), located in Washington's rural Olympic Peninsula, has the distinction of being one of the few American newspapers to incite people to such anger that they passed a law against it.(fn20) The Journal has a policy of printing the names and testimony of all victims who testify in felony trials in Mason County Superior Court.(fn21) That includes the names of rape and child molestation victims.
When publisher Henry Gay bought the Journal in 1966, its policy on covering Mason County Superior Court was already established.(fn22) The newspaper covered all felony trials and reported the names and testimony of all witnesses.(fn23) Mason County journalists may have followed this procedure since the newspaper's establishment in 1888. In doing research, staff members have come across articles from the nineteenth century in which crime victims, including sex-crime victims, were named.(fn24)
In the 1960s and 70s, other newspapers that named sex-crime victims stopped doing so, but the Journal continued.(fn25) Henry's son, Charles, who has been the newspaper's editor since 1980, explained, "To change our policy, we feel, would be a dereliction of our journalistic duty, an unfair treatment of defendants and an action that sends exactly the wrong message to victims that you need to be protected, you should be ashamed, the world mustn't know of your tragedy."(fn26)
For two decades, the Journal continued its policy with little trouble. The 9,400-circulation weekly covered a sex-crime trial perhaps once a year or once every eighteen months.(fn27) A few people would get upset about the use of the victim's name, but the complaints never lasted long.(fn28) But, Charles said:Then came 1985, when there were four sex-offense trials on top of each other. The anger in the community built after each one instead of dissipating. Someone called Channel 4 to ask for a "Town Meeting" on the subject to discredit us, and I agreed to appear. There followed broadcasts on Nightline and another national program as well as stories in the New York Times and other newspapers. We published about 40 letters to the editor on the subject that year, about 30 of them opposing the policy of covering trials completely, consistently and fairly.(fn29)
Coverage of the four trials, which were held from May through July, inflamed the community.(fn30) About 450 people went to the taping of the Town Meeting television special to protest the Journal's policy.(fn31) In July, people picketed outside the newspaper's office, and later in the year, someone organized a letter-writing campaign, asking about two hundred businesses to pull their advertising from the Journal. (fn32) The following year, eight hundred community members signed a petition asking the Journal to change its policy.(fn33)
People were not just upset about the use of victims' names; they also were outraged by the publication of what some considered obscene material.(fn34) The Journal includes victims' names and testimony. Here are two accounts of victims' testimony from articles about the 1985 trials:
Kelly testified that in the early morning hours of November 21, he had been forced to have oral and anal sex with George, who was his cellmate at the time. He said the incident occurred after lockdown when the two were locked in their cell.(fn35)
and
She said he was holding her down on the bed and had her knees pushed up to her shoulders while she was trying to push him away with her hands.
She said while they were...
