So far, the debate over whether to publicize the names of rape victims has been little more than a confusing discussion about journalistic ethics, feminist arguments and the public's right to know.
The muddle, I suggest, results from the fact that we are not asking and answering the right three questions: Can the media make that decision? Should they? And what happens when they do?First of all, the decision to make public the names of rape victims belongs solely to the press - not the public, not feminist organizations, not even the victims, and certainly not the government. The First Amendment guarantee of a free press demands no less.
If that sounds obvious, consider the Florida statute, enacted in 1991, which would impose penalties against media that publish the names of rape victims.
Right now, the American Civil Liberties Union is challenging the constitutionality of that statute because Florida officials want to apply it against The New York Times, NBC and others who made public the name of the woman accusing William Kennedy Smith.
While that law and others like it have been on the books for years, they are rarely enforced, since most media outlets choose not to make public the names of rape victims. But the Smith case may have changed forever the precedent, at least for some members of the press.
Which leads to the next question: Should they? Advocates of women's rights, as well as other civil libertarians, can disagree over the answer. Like some other feminists, I am coming to believe that making the names of rape victims public may help eliminate the stigma now attached to this crime.
The idea of releasing names now, before society has changed its attitudes, is not the priority I would choose, but it may nonetheless lead to a good result. Keeping these names secret, when the names of the accuser in all other crimes are not kept secret, implies that the victim has something to be ashamed of and that she is "damaged goods."
Such suspicions and sexism might disappear if rape were treated like other violent crimes, and those who suffer from it are not made to feel like suspects instead of victims.
What happens when the names of victims become public information? The truth is we don't really know, since the practice of keeping these names secret is still widespread. But it is not clear, as opponents of publication now argue, that it will deter women from reporting the crime. That already happens: An estimated 90 percent of all rapes already go unreported, even while most media adhere to a practice of not reporting names.
In my view, the reason is not fear of publicity, but a legitimate fear about how she will be treated by the police, prosecutors and the courts, which is generally not very well.
I am not arguing that every rape victim will now be treated more fairly by the criminal justice system because an editor decides to print her name. But in the long run, it may help educate the public about just how horribly common rape is, and it could change the notion that rape is a victimless, faceless crime.
Let us also not forget that the accused have rights too, including the right to face their accusers. Whatever the outcome of the matter involving William Kennedy Smith, we would do well to remember that he has not been found guilty, he has not come to trial, in fact no charges have yet been brought against him.
I have heard no one argue that his name - and his family's name - be kept out of the papers because there should be no anonymity for the accused. Nor would anyone presume to tell the media that they should never publish the names of victims of other crimes, such as assault.
It is lamentable when anyone involved in a crime finds irrelevant personal details of her or his life dragged into the spotlight. But relevant facts can help the public judge charges in context, and in a society that values a free press it must be left to journalists to decide what is "relevant."