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Prosecutor grandstanding undermines justice

By Wendy McElroy
web posted January 12, 2004

On January 1, the police department of Paradise Valley, Ariz., released the name of Kansas State football star Ell Roberson to the media as an accused rapist.

Ell Roberson
Roberson

No charge had been filed: no arrest made, then or now. Roberson denied the accusation leveled against him mere hours before, early that morning. The Paradise Valley police simply "outed" an accused rapist before completing an investigation. The process of how police departments deal with sexual assault accusations should be overhauled.

The police seemed to knowingly inflict damage on Roberson with little evidence to do so. Lt. Ron Warner reportedly told journalists that there was "no supporting evidence, no witnesses, no physical injuries" surrounding the alleged rape. "We have two opposing descriptions of what happened," he concluded. Paradise Valley Police Chief John Wintersteen subsequently explained, "the investigation is not done." Medical tests on the accuser had not returned when Roberson's name hit TV, nor were they expected until early the next week.

Why was Roberson thrown to the media?

Two factors probably played a large role: Careers are made by prosecuting celebrities; and, the legal system has grown callous toward those accused of sexual abuse.

With regard to career-making, the police's timing was interesting. Roberson was scheduled to play the next day (Friday) in the Fiesta Bowl against Ohio State. Speculation on whether his coach would pull the star quarterback flooded major news channels. When Roberson played after being cleared by a university investigation, nationwide debate on the decision ensued. Sportscasters wondered about how the accusation may have affected the game: Ohio State won. Waiting for such niceties as medical results might have made police and county attorneys miss out on publicity.

With regard to callousness, the Paradise Valley police were stepping in the footsteps of recent, similar prosecutions.

Colorado District Attorney Mark Hurlbert, who is prosecuting Kobe Bryant on rape charges, recently apologized for T-shirts about Kobe that originated in his office. One T-shirt read: "I'm not a rapist; I'm just a cheater." Hurlbert admitted that he and co-prosecutor Greg Crittenden each received a shirt but claimed not to know the source.

Santa Barbara County District Attorney Thomas W. Sneddon joked with reporters during a Nov. 19 press conference to announce that an arrest warrant had been issued for Michael Jackson for child abuse. A sample: "I hope that you all [journalists] stay long and spend lots of money because we need your sales tax to support our offices." Why was he laughing? Because child abuse is funny or because he thinks the charges against Jackson are a joke?

The publicity surrounding celebrity cases is extreme but elements of it are also present in low-profile prosecutions. For example, whenever an official announces a "get tough" campaign on sexual assault, success is measured by how many assailants are prosecuted or imprisoned. This provides incentive to publicize prosecutions.

Or, rather, to publicize one side of those cases. The accuser's identity is protected.

Why? The stigma our society attaches to those accused of rape is at least as strong as that attached to rape victims. And, at the point of accusation, neither is presumed to be innocent or guilty.

The answer will come back: because women must be encouraged to report rape without feeling intimidated. But it is equally valid to argue that accused men must be encouraged to defend themselves without feeling that the police and prosecutors will use the media against them. If the goal is to protect the innocent, the obvious solution is to name neither party until after a trial verdict. But police and prosecutors do not advocate this remedy.

And for a good reason. Justice requires transparency, not secrecy. Many safeguards for justice aim at openness: public access to courtrooms and court records, the right to face an accuser, the right to cross examine witnesses, trial by jury, etc. There may be valid reasons to seal a specific case but a whole category of crime, such as rape, should never be pushed into judicial shadow.

A key reason for transparency is to discourage false accusations. This is also why police conduct investigations and why courts presume a defendant to be innocent.

How common are false allegations of sexual assault? No one knows. And the more anonymous accusations become, the less likely it is that solid statistics will emerge. One of the best studies remains that of the now-retired Purdue University sociologist Eugene J. Kanin. Kanin examined reports of forcible rape lodged with the police force of a small metropolitan town from 1978 to 1987. There were 109 accusations; 45, or 41 percent, were discarded as false.

Forty-one percent seems remarkably high but it does indicate the urgent need to take false accusations seriously. The law should apply its own standard of "presumption of innocence" by naming an accuser as well as the accused, or naming neither. It should prosecute the filing of false reports as vigorously as it does valid ones.

As it stands, those who prosecute rape allegations are losing credibility. A legal system that mongers gossip to the media before concluding investigations, that prints humorous T-shirts about defendants and uses press conferences for comic relief does not engender trust in justice. It is a threat to justice in-and-of itself.

Wendy McElroy is the editor of ifeminists.com and a research fellow for The Independent Institute in Oakland, Calif. She is the author and editor of many books and articles, including the new book, "Liberty for Women: Freedom and Feminism in the 21st Century" (Ivan R. Dee/Independent Institute, 2002). She lives with her husband in Canada.

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