Whose right is it anyway?

Videotape of accident victim raises questions about rights to privacy

The videotape was made without the permission of the subject or her father. But when the state gave it to TV stations, they aired it with little hesitation.

By Lee Wilkins

Lee Wilkins is associate dean, University of Missouri.

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. 3 (March 1991), pp. 1, 8.

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.

 

It was the latest attempt to sway public opinion in Missouri’s most recent right-to-die case: On February 4, the state supplied videotape to St. Louis television stations which it said showed that Christine Busalacchi, severely brain-damaged almost four years ago, is no longer in a persistent vegetative state. Missouri is trying to keep the 20-year-old woman’s father, Pete Busalacchi, from moving his daughter to another state.

While both sides say they’re concerned about Christine Busalacchi’s “rights,” her right to privacy has been lost in the legal maneuvering. Even the St. Louis media have allowed compelling pictures to overwhelm privacy considerations.

“It was like one of those CNN-Pentagon briefings,” said Shane Moreland, news director for KSDK in St. Louis which aired some of the state- supplied videotape. “They called a press conference, showed up and gave it to us.”

The “they” in the case is the Missouri state health department which supplied a St. Louis probate court judge with the same 13-minute videotape of Christine Busalacchi given to the media. The state is asking the court to accept the tape as evidence that her condition has improved. As of this writing, the tape has yet to be formally accepted.

All four St. Louis television stations covering the hearing asked for and received copies of the tape. All four aired about 60 seconds of it, each linking the tape to testimony asserting that Busalacchi could respond to comments from hospital staff members and that she could move her legs.

Still frames of the video accompanied many Missouri newspaper articles, and the AP photo of Busalacchi also ran in The New York Times.

“Sure they were smart to bring that with them,” said Bill Berra, news director for KTVI. Berra was among those who said his television station had considered and readily dismissed the privacy issue.

“I’m teaching a journalism class . . . and we discussed that tape the night it aired,” agreed Michael Castengera, assistant news director at KMOV.

“All the students said it was something they would want to see.”

The Busalacchi case is the second right-to-die case to reach the courts in the past year. Last summer the U.S. Supreme Court ruled the parents of Missouri resident Nancy Cruzan had to supply “clear and convincing” evidence that a patient did not wish extraordinary medical care before that care could be terminated. Cruzan’s parents eventually produced such evidence, the extraordinary procedures were discontinued and Cruzan died.

The Cruzan decision prompted Busalacchi’s father Pete to request that his daughter’s feeding tube be removed so he could move her from the state- supported Mount Vernon Rehabilitation Center to Minnesota, which has less-restrictive laws governing the provision of extraordinary medical care.

To support his fight, Pete Busalacchi had provided the media access to Christine. She has been videotaped many times, and prior to the early February hearing, her picture had run in Time magazine.

However, the state is attempting to block Busalacchi’s efforts on the grounds that he has already made up his mind to permanently remove Christine’s feeding tube.

It has chosen to fight in what even state attorneys admit is an unusual fashion. Busalacchi’s case is the first time the state health department has attempted to submit videotape as potential evidence in a legal hearing. The department also asserts that because Christine is being cared for at taxpayer expense, state attorneys did not have to obtain either her or her father’s permission to shoot the tape.

That contention is heatedly denied by Pete Busalacchi. (Busalacchi, on the advice of his lawyer, declined to be directly quoted for this article.)

This complicated background in a case that is becoming characterized by charges of bad intent on both sides figured into the coverage.

All the journalists interviewed referred to the previous ready access to Christine as a factor in their decisions. To them, the state’s tape constituted the continuation of an already established pattern of coverage, not something distinctly new.

The news directors agreed that the two segments of the state’s tape which they aired — Christine purportedly reacting to directions and conversations from a nurse and moving her legs — provided no conclusive proof of her condition. “I think what that tape showed was what you wanted to see. It was in the eye of the beholder,” Castengera said.

Berra and Castengera agreed the privacy issue was something that “perhaps” should have been addressed after the fact. Only Moreland said his station had considered the question before it decided to air portions of the tape.

“We did apply the standards. It wasn’t grotesque, it wasn’t difficult for people to watch, it wasn’t offensive. And, we didn’t get her permission.”

Moreland noted that his station’s report had tried to frame the issue for the viewers. “We did have a health expert on as part of the report . . . who pointed out that because of the camera angle and the sheet over her, you couldn’t tell whether she was moving her leg or whether there was someone else moving her with an arm under her sheet.”

While all the broadcasters said their stations had either informal or written policies about airing the identities of rape or incest victims, all also said they believed the Busalacchi story did not raise similar privacy questions. Their reasoning was confounded by confusion over the precise legal status of the tape itself.

Missouri has no laws permitting cameras in the courtroom. Although one of the news directors had helped to draft cameras-in-the-courtroom guidelines in Wisconsin, all acknowledged they had never faced a decision to withhold videotape shot for use as courtroom evidence.

“I saw no reason not to run it,” Berra said. “It was evidence in an open court hearing.”

“Yes, she is a victim,” Moreland added. “But, in our role as window to the world, we felt this was something we had to do.”

And, the broadcasters insisted they would have run a story even without the videotape.

“But it would have been a lot lower . . . and a lot shorter,” Moreland noted. “The videotape was the story.”

While the journalists were unanimous in their views about the privacy questions arising from the story, they appeared far more troubled by assertion that the state had essentially used the media to try its court case in public.

“I don’t know . . . I wouldn’t attempt to answer that,” Castengera said.

“It (the state’s use of the media) was the single topic of conversation the day we ran the story and the day after when we did the follow-up,” Weber said. “It’s very clear the state has chosen to argue this case in the court of public opinion.”

“The tape was definitely a bribe,” Moreland noted. “And, we knew it when we ran it . . . It was one of those times when you know you’re being used and you just grit your teeth and do it anyway.”

For more about this topic, see “Other views on the Christine Busalacchi case.”

 

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