Come on, Judge—Don't Out the Witnesses in the Jerry Sandusky Trial

Murder, theft, and other wickedness.
June 5 2012 3:34 PM

Nameless Victims

The witnesses against Jerry Sandusky shouldn’t be outed against their will.

Jerry Sandusky
Jerry Sandusky

Photograph by Patrick Smith/Getty Images.

With Jerry Sandusky on his way to trial on 52 counts of molestation, Judge John Cleland made a surprising decision Monday: He denied a request from four of the alleged victims to testify without giving their full names. These four alleged victims say Sandusky, a retired assistant football coach at Penn State, sexually abused them for years when they were young boys.

Emily Bazelon Emily Bazelon

Emily Bazelon is a staff writer at the New York Times Magazine and the author of Sticks and Stones

I’m all for open courts, and for strongly enforcing a defendant’s constitutional right to confront his accusers. But the judge’s ruling strikes the wrong balance between the right to privacy and the right to self-defense. The public doesn’t need to know the identity of these men for Sandusky to get a fair trial. And outing them fails to recognize the high price of testifying in a case that’s both a media spectacle and a stage for airing intimate facts that most people would not want known about themselves. Being a victim of sexual abuse shouldn’t carry a stigma, but it does. Given that reality, the judge’s order for disclosure of these witnesses’ identities forces them to bear too high a cost.

In a four-page order, Judge Cleland said he had no choice but to force the victims to use their full names. Pennsylvania law, he explained, doesn’t provide for anonymity for an adult witness simply because that witness is the victim of a particular kind of crime. “Courts are not customarily in the business of withholding information,” Cleland wrote. He’s right about that. But he’s wrong to discount the burden of testifying about sexual abuse in a highly publicized trial. “Why should only that class of witnesses be protected?” the judge asked, referring to sexual abuse victims. “No victim of crime, after all, is spared the trauma of crime’s effects.”

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Sorry, but that’s obtuse. Like it or not, being sexually abused is different from being the victim of a robbery. "It's almost as if he's being branded with a scarlet letter," one of the witnesses’ lawyers said in requesting anonymity for his client. "This is something he may not ever be able to escape from—'Oh, he's one of Jerry Sandusky's victims.' "

Some sexual abuse victims bravely come forward to break the taboo, and more power to them—they are doing a service for all of us. But sexual abuse victims shouldn’t be forced into outing themselves because they’ve agreed to help the state by testifying at a criminal trial. This isn’t a forum they’ve chosen—they’re just doing their duty as citizens. And while Cleland didn’t acknowledge it, courts do have the means to protect a witness’s anonymity without sacrificing the rights of the defendant to confrontation and cross-examination. A judge just accomplished this in New Jersey, at the trial of Dharun Ravi, who was convicted in March of invading the privacy of his former Rutgers roommate, Tyler Clementi, by spying on him with a webcam. Ravi spied on Clementi while he was on a date with another man, whom we still know only by his initials, M.B. Since one of the charges against Ravi was invasion of privacy, M.B. was also a victim. M.B. asked to remain anonymous, for reasons that are exactly like those of the Sandusky witnesses. "I have a substantial fear that the release of this personal information will result in a total invasion of my privacy," he told the judge. "It is difficult for me to describe this fear. It is continuous and overwhelming."

Judge Glenn Berman properly ordered M.B.’s full name and address to be disclosed to the defense team, so they could prepare to cross-examine him. But the judge also ruled that M.B. would not be publicly identified, and that his face would not be photographed at the trial, which was broadcast live. The media respected that order. M.B. is still just M.B. in the press, and his overwhelming fear of exposure, presumably, did not come to pass. That should be a relief to the rest of us as well: It would have been a terrible irony if M.B.’s privacy had been invaded in the service of prosecuting Ravi for invading the privacy of M.B. and Clementi.

As for the Sandusky witnesses, Judge Cleland said he hoped the media would respect its usual custom of protecting the privacy of alleged victims. I hope so, too. But the judge should have done more for them. In today’s Google-able world, named victims carry their victimhood with them online forever. It becomes not just one fact about them, but the central fact that anyone who searches for them on the Web will find.

That kind of exposure and notoriety is its own kind of harm. The U.S. Court of Appeals for the 11th Circuit recognized the dilemma for alleged victims in a recent ruling about four women who’d been filmed by the Girls Gone Wild franchise when they were below the age of consent. The women wanted to sue for emotional distress, but they argued that if they did so under their own names they’d be permanently identified with the videos online, like another woman who sued Girls Gone Wild and has now been tagged by name as a “breast flasher” on the Internet Movie Database. The 11th Circuit listened, and let these four women proceed as B., J., S., and V.

In criminal cases, it’s not entirely clear how much anonymity is allowed by the Constitution. In 1968, the Supreme Court ruled that the defendant’s right to confront his accusers was violated when a trial court wouldn’t let his lawyer ask a witness’s real name. The justices, though, said that the result could have been different if there’d been an important government purpose for withholding the information. Since then, complete anonymity in court has been rare—mostly restricted to cases in which a witness legitimately fears for his safety, or there’s a national security interest at stake. That’s as it should be. But as Judge Berman’s order about M.B. shows, courts can show sensitivity toward disclosure without imposing complete anonymity. If Pennsylvania law doesn’t allow for such a compromise, then the appeals courts or the legislature should fix that. We ask a lot of alleged sexual abuse victims when they testify. If they want to shield themselves from the eternal “Sandusky victim” Google search, the courts should figure out how to respect their wishes.

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