Civilly suitable

If law requires less, should media reveal more?

Should the rules about naming plaintiffs change when a sexual misconduct case is brought in civil, rather than criminal, court?

By Brian Ojanpa

Brian Ojanpa is a reporter with the Mankato (MN) Free Press.

Author bio information is from the time of article submission and may not be current.

Source: FineLine: The Newsletter On Journalism Ethics, vol. 3, no. 8 (September 1991), p. 5.

This case was produced for FineLine, a publication of Billy Goat Strut Publishing, 600 East Main Street, Louisville, Kentucky 40202. Reprinted with the permission of Billy Goat Strut Publishing. This case may be reproduced for classroom and research purposes. Publication of this case in electronic or printed form requires written permission from the publisher and Indiana University. An exception is granted for use in readers designed for specific academic courses.

 

A woman has an affair with her chemical dependency counselor. Later, she claims he sexually exploited her, gave her herpes and impregnated her.

But when she filed a civil, rather than a criminal, lawsuit against the man, we had to reevaluate our newspaper’s policy against printing the names of sexual misconduct victims.

With criminal proceedings, substantial probable cause must be evident to legal authorities before a suit can proceed. But civil action is far less demanding. Anyone can sue anyone. It’s the individual, not the state, bringing the action.

After failing to initiate criminal action for lack of evidence, the woman decided to base a civil suit on a section of Minnesota’s 1986 Vulnerable Adults Act pertaining to counselors and therapists who sexually exploit clients.

Throughout the trial, the first of its type in Mankato, we maintained our policy for sexual misconduct cases that come to trial in criminal court — in deference to protecting alleged victims’ privacy, we name only defendants.

But as the reporter covering the trial, I was uncomfortable with that, especially since testimony — such as the woman’s admission that the sexual relationship hadn’t begun until a year after her group counseling sessions ended — strongly suggested that this was a love affair gone sour, with legal action being used to clean up the mess. I also felt that the case smelled of guinea pigs, with defendant and plaintiff being used to test a new law.

After a fair amount of in-house soul-searching and outside protests, we decided to set a new policy for civil lawsuits involving sexual misconduct.

Since there is a potential in civil suits, however small, for people to carry hidden agendas, we are obliged to more closely scrutinize each case.

And that means naming both parties.

In this case, we named the plaintiff after the jury reached a verdict that the woman had not been sexually exploited. A week later, the Mankato Free Press was picketed by about 30 people protesting our decision. “The Free Press is insensitive and uncaring” and “We believe victims,” read two of the milder scoldings.

The protest followed a meeting with county sexual assault victims’ advocates. Their stance: The legal differences between criminal and civil cases are secondary to protecting alleged victims.

“When victims face public exposure, assault services coordinator Mary Dowd told us, “they inevitably receive threatening phone calls, obscene letters and a range of harassment.” Publishing names in such cases, she added, will have a chilling effect on the future reporting of such incidents.

The advocates also didn’t believe “alleged” is applicable in such cases. Dowd said anyone who takes this kind of action must be a victim; otherwise, she (or he) wouldn’t put herself (or himself) through the agony.

We countered by saying that not publishing the woman’s name went against a basic journalistic tenet — fairness. And even though the defendant was exonerated, he was ultimately victimized by the charges. He was fired by the hospital and went to work on a hog farm.

Our further response was that we aren’t the Amazing Kreskin. We can’t read minds and we can’t predetermine intent. We knew this case was traumatizing, but there’s a whole range of illegal activity people are embarrassed about. How can we decide which names we should publish and which we shouldn’t, based on a crime’s “shame value”?

In this case, our decision to publish the woman’s name was made easier by the outcome. Because the ex-counselor was exonerated, any “media victimization” pendulum would have swung decidedly against him if we continued to print only his name.

We considered not publishing any names during civil court cases of this type and at first, this seemed equitable. Then we realized it goes against another basic journalistic duty — informing the public.

As Free Press publisher Joe Richter remarked, “Then you’d have: ‘Local woman sued a counselor of some institution.’ That serves nobody.”

Our conclusion: Civil proceedings, lacking the checks and balances of criminal cases, must be dealt with on a different playing field.

This is not to say that our naming policy on such civil cases is unyielding. Two potential exceptions: a person who successfully prosecutes in criminal court and then wants to sue in civil court for monetary reasons; and someone taking long-delayed civil action because traumatization prevented criminal action within the applicable time limit.

So our policy’s operative word will have to be: “generally.” These are tough calls the media will increasingly have to make in this new civil law arena of sexual assault and sexual exploitation.

Richter took a personal perspective in summing up our decision to name names. “I’m not a callous, brutal, white male trying to rub [plaintiffs’] noses in the system.

“But newspapers sometimes have to print things that are uncomfortable. Our mission of informing the community transcends other issues.”

 

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