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| Blog and Media Roundup - Friday, April 1, 2011; News Roundup | |
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| Tweet Topic Started: Apr 1 2011, 03:01 AM (1,184 Views) | |
| ~J~ is in Wonderland | Apr 1 2011, 05:44 AM Post #16 |
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~J~ is in Wonderland
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I agree. Thanks abb - its like reading a newspaper here every morning. Yep, what a great cup of coffee today.
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| abb | Apr 1 2011, 06:42 AM Post #17 |
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http://dukefactchecker.blogspot.com/2011/03/brodhead-steel-under-court-order-to.html FC note: It is beyond my comprehension that the Chronicle does not report on this in its Friday edition. Even more so, because from the moment FC was first tipped about the federal court's rulings, FC sent the editors e-mail advisories. The news editor acknowledged the first by asking for more details. This spoon-feeding continued through-out the evening, and included the full text of the judge's orders as soon as each was sent to Fact Checker by a very Loyal Reader. The e-mail with the most important text was at 7:20 PM -- more than enough time for today's edition (as coverage of the rap singer at a later hour proves). This is a disgrace; the newspaper's editors -- who on the March anniversary of the start of the hoax offered extensive coverage of the journalistic work of their predecessors on the case -- owe readers an explanation. |
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| Quasimodo | Apr 1 2011, 07:51 AM Post #18 |
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Ditto! |
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| abb | Apr 1 2011, 10:23 AM Post #19 |
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http://blogs.wsj.com/law/2011/04/01/judge-green-lights-suit-by-duke-lacrosse-players-falsely-prosecuted-for-rape/ * April 1, 2011, 10:49 AM ET Judge Green Lights Suit by Duke Lacrosse Players Falsely Prosecuted for Rape Litigation certainly does move at a glacial pace. Remember the Duke lacrosse saga involving the three players falsely prosecuted for raping a stripper who said she had been attacked at a lacrosse team party in 2006? The players were later cleared in the wake of disclosures that prosecutors had withheld exonerating evidence. The players sued former North Carolina prosecutor Mike Nifong and the City of Durham back in 2007, accusing them of conspiracy and of various constitutional violations. Nifong separately was disbarred for his handling of the case. The players’ suit claimed the criminal investigation was “one of the most chilling episodes of premeditated police, prosecutorial and scientific misconduct in modern American history.” A mere four years later, federal judge James Beaty Jr. yesterday declined to dismiss the players’ claims that their constitutional rights were violated, Bloomberg reports. The players can now proceed to trial. The players have asked the court for unspecified damages and for a monitor to be appointed to oversee the Durham police for 10 years, according to Bloomberg. “The intentional use of false or misleading evidence before a grand jury to obtain an indictment and arrest without probable cause is exactly the type of unreasonable search and seizure that the Fourth Amendment was designed to protect against,” the judge ruled. In 2006, Nifong conducted almost 100 media interviews in which he said he had “no doubt” the athletes had engaged in a racially motivated rape, according to Bloomberg. But the director of a local DNA lab later admitted he and Nifong agreed to withhold evidence that probably would show that the team members did not commit rape. Nifong, Bloomberg reports, had claimed that he was immune from the suit because he acted in his official capacity as a prosecutor. And the city also claimed it was immune from liability and contended that the suit sought to “impose on Durham taxpayers untold millions of dollars in damages for plaintiffs who were publicly exonerated and never spent a moment in jail.” But Judge Beaty did dismiss the players’ conspiracy and emotional-distress claims. James Craven III, counsel to Nifong, and Reginald Gillespie Jr., who represents the city, did not immediately return calls from the Law Blog for comment. |
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| abb | Apr 1 2011, 10:42 AM Post #20 |
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http://durhamwonderland.blogspot.com/2011/04/beaty-decision-carrington-lawsuit.html Friday, April 01, 2011 Beaty Decision (Carrington Lawsuit, Unindicted Players): Updated In general, perhaps the most surprising element of this filing came not from Judge Beaty but from Duke spokesperson Michael Schoenfeld, who commented that a ruling in which Pres. Brodhead, Tara Levicy, Dean Sue Wasiolek, and Duke Health would remain as defendants, and thus be subject to depositions and discovery, and in which Duke professors were condemned for having committed possibly liable acts, (and, for the record, in which a federal judge affirmed Duke's argument that its handbook and bulletin aren't legally binding on Duke, a finding that I doubt very much Duke shares with too many prospective parents) worked out "as we had hoped." As I noted yesterday, the university did score a victory in the dismissal of claims against the most virulently anti-lacrosse member of the upper administration, Larry Moneta, who would have been a disaster for the university in any deposition. Beaty key passages below: count 23—conspiracy & obstruction of justice—upheld against Duke, Duke Health, Levicy, Wilson, Gottlieb, Himan Beaty dismisses the general Duke/Durham line of argument: “Defendants contend that Plaintiffs have not alleged facts to establish that Defendants’ alleged conduct actually obstructed, impeded, or hindered any aspect of the claim, but the Court concludes that Plaintiffs have alleged significant misconduct in the creation of false and misleading evidence and destruction or alteration of potential evidence, and further analysis of these issues would require consideration of factual issues more appropriately considered at summary judgment to determine if sufficient evidence is presented in support of the claim. Therefore, the Court concludes that Plaintiffs have stated a state tort claim for obstruction of justice at this stage.” Beaty dismisses the claims against individual supervisors, on grounds that the guilty supervisor, if any, would be Duke & Duke Health, and the city of Durham. count 21— U.S.C. § 1983 claim regarding the NTO requirement for DNA & blood samples, against various Duke & Durham employees—upheld against Gottlieb, Himan, and former SANE-nurse-in-training Tara Levicy Beaty concludes that the “Plaintiffs have raised substantial questions regarding the constitutionality of the searches and seizures effected pursuant to the NTO in this case, both as to the procedure that was followed and the scope of the NTO that was entered.” Beaty notes that both U.S. and North Carolina law are inconsistent on exactly what 4th amendment protections apply in a circumstance such as this, but in any event, the claim can go forward, since “Defendants raise extensive factual contentions to dispute these allegations and to demonstrate that probable cause existed even if the allegedly false statements are removed and the material omissions are included. This analysis by Defendants includes extensive parsing of pieces of the Amended Complaint, and attempts by the various Defendants to blame one another. “ Such matters, he notes, can’t be decided at a motion to dismiss. He also rejects the city’s claim that such an issue never could rise to the level of a constitutional violation: “the Court concludes that there is no question that these rights were clearly established, and no reasonable official could have believed that it was permissible to deliberately or recklessly create false or misleading evidence to present to a magistrate to effect a citizen’s seizure.” count 19—negligent supervision—upheld against Duke (but not individual Duke defendants) And on this count, the Group of 88 and other extremist professors’ behavior could cost Duke: “In Count 19, Plaintiffs bring claims against Duke . . . for Negligent Supervision of Duke professors and employees. As the basis for this claim, Plaintiffs contend that employees of Duke committed tortious acts of fraud, intentional and negligent infliction of emotional distress, harassment, nuisance, intrusion upon seclusion, defamation, and other torts against Plaintiffs, and that Duke . . . knew of the ongoing tortious conduct and “took no action to stop, prevent, or sanction them, but rather condoned, approved, and ratified the incidents of tortious conduct.’” count 18—intrusion upon seclusion, against Duke and various administrators, dismissed Beaty argues that the administrators themselves committed no specific wrongful acts under this count. But he adds in a tempting line: “Although the Amended Complaint alleges conduct by faculty members that is certainly questionable, those allegations do not state a claim against Duke or any of the named Defendants for intrusion upon seclusion.” [emphasis added] Doubtless the Group of 88 is breathing a sigh of relief upon reading this line. count 15/16—breach of contract—dismissed This was by far the most disappointing element of any aspect of the Beaty rulings. Relying on precedents involving very different—and much, much narrower—types of issues (the Love and Giuliani suits against Duke), Beaty held, “courts in this district have repeatedly concluded that a university’s academic bulletins and policies cannot be the basis of a breach of contract claim unless the bulletin or policy provision is a specific, enforceable promise that is incorporated into the terms of a contract between the university and the student.” Beaty continues that despite the wording of the bulletin, there is no “indication of any intent by Duke to be bound to any particular obligation or course of conduct based on this general policy language.” In effect, under this ruling, student bulletins and faculty handbooks in the 4th Circuit are worth nothing more than scraps of paper, and the university has no legal obligation to hold itself to their provisions. (It would be difficult to imagine a more transparent, major breach of the bulletin than what was alleged in this case.) Other circuits, I should note, do not have such a standard. count 11—fraud—based on Brodhead and Trask assuring the players that anything told to them would remain confidential, when they knew otherwise; and Dean Sue Wasiolek, for urging the players not to tell their parents or retain counsel; upheld Beaty suggests that this is normally an almost impossible bar to meet when dealing with a university’s relationship with students. But the facts of this case manage to surpass the bar. Why? “While an administrator is not ordinarily in a fiduciary or confidential relationship with the students, an administrator who is a lawyer [Dean Sue], who discusses pending criminal charges with her students, who affirmatively cuts them off from other advice by telling them not to seek legal advice and not to tell their parents, and who then directs them to the institution’s attorney in an effort to protect the institution at the students’ expense, could plausibly be liable for constructive fraud under state law.” He continues, “Similarly with respect to Vice President Trask, although a fiduciary relationship would not ordinarily exist between the players and Trask, Plaintiffs allege that Trask created a confidential relationship by assuring the co-captains that they could confide in him even against the advice of their attorneys, based on the existence of what Trask allegedly called a “student-administrator privilege,” which Plaintiffs contend Trask subsequently breached for Duke’s benefit. Likewise as to President Brodhead, although no fiduciary relationship ordinarily would exist, Plaintiffs allege that Brodhead explicitly assured the co-captains of confidentiality and urged them to trust him and to issue an apology, but that Brodhead did so only for Duke’s benefit and at the expense of the co-captains.” Count 1/2/6/7—emotional distress—dismissed, for same reasons noted in Evans case below. Counts 4/5—Medical negligence—dismissed, on grounds that Tara Levicy owed not the plaintiffs but only false accuser Mangum quality care. This appears to be a correct reading of North Carolina law, but is a frightening finding. Count 3—Neligent supervision—partly upheld: “The Court will not dismiss the claim asserted in Count 3 for negligent supervision with respect to Duke and Duke Health, to the extent that other underlying claims are proceeding in this case as to Levicy.” Beaty notes, however, that the law doesn’t allow such a claim against Levicy’s individual supervisors. Count 8—fraud—related to Duke’s giving the DPD access to the lacrosse players’ key card info in March 2006, without a warrant, and in apparent violation of FERPA; and then lied about it when Nifong subsequently requested a court order for the information, which Judge Titus denied—upheld “To the extent that this claim is based on a fraudulent omission, Plaintiffs have identified the general content of the information that was withheld and the reason for its materiality, and the identity of those who failed to make such disclosures. Plaintiffs have also alleged the relationship and events giving rise to the duty to speak, based on the actions of Drummond and Hendricks in undertaking to send the letters.” Beaty dismisses the claim of fraud against Durham, suggesting that the guilty party, if any, was Duke; and that the plaintiffs will have to prove who at Duke knew of the March 2006 decision to provide the keycard information to the DPD. The university seems extremely vulnerable here; it has yet to offer any remotely convincing explanation for its behavior. Posted by KC Johnson at 9:13 AM |
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| cks | Apr 1 2011, 01:00 PM Post #21 |
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A brief look at the NY Times news site, MSNBC, CNN, and Fox show no reporting of the decision. (1:58 EST) |
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| Payback | Apr 1 2011, 01:11 PM Post #22 |
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Yes, abb, thank you. There are so many LieStoppers to thank today! |
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| genny6348 | Apr 1 2011, 01:18 PM Post #23 |
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Genny6348
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Thanks Abb, for all that you do!!!
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| cks | Apr 1 2011, 01:23 PM Post #24 |
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Abb - a huge thank you. I begin the day by checking in at your daily posting. |
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| abb | Apr 1 2011, 05:33 PM Post #25 |
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http://technorati.com/sports/article/judge-allows-duke-lacrosse-lawsuit-to/ Judge Allows Duke Lacrosse Lawsuit to go Forward Author: Lori Puente Published: April 01, 2011 at 8:46 am Accused and cleared, Duke lacrosse players are back in the news with a recent favorable ruling for them to move forward on a lawsuit against the then local prosecutor, DA Mike Nifong and investigators from the Durham Police Department. I followed this story pretty closely at the outset, having a son in college at the time and being a lacrosse fan. One of the students was from a great school in our area. I felt a connection. What struck me then and now is how fortunate these boys are to have the support and money to be able to defend themselves. One could get quite caught up in the racial component of this story as just another bunch of 'white' boys getting off. OR, we could look at it in the sense that these boys are in a position to take on the system and it will make changes that are good for all. I chose the latter. For the most part we have a criminal justice system that works, but when you have a small group, who have gained power, going unchecked, losing their own ethical code and not recognizing bias in their viewpoint, it can ruin lives and destroy an entire community. I have little sympathy for Mike Difong and his investigators. The mistakes they made weren't ones of a rookie cop getting caught up in catching the bad guys, but one of sticking to their scenario of events and discounting the evidence before them. It was and is, shameful. Justice being blind is our country's edict. It's a lofty, yet attainable goal and one that sadly still needs work. Minorities have understood this all too clearly for too long. Maybe we can break open bias and bigotry with this case, regardless of the race, ethnicity, education, socio-economics and gender, and look at it as change that is needed for all Americans. |
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| abb | Apr 1 2011, 05:33 PM Post #26 |
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http://theflume.com/main.asp?SectionID=1&SubSectionID=1&ArticleID=7964 Friday, April 01, 2011 To name or not to name Tom Locke Flume Editor Friday, April 01, 2011 I don't typically write editorials. This will make the third in five years. But questions about a particular widespread no-naming policy in journalism have been gnawing at me with respect to the trial of Malinda Spykstra, found not guilty last Friday on sexual assault charges. (See stories Page 1 and Page 3). These thoughts that follow are mine, not those of the owner of The Flume, and they don't reflect the paper's editorial policy. First, let's look at what Malinda Spykstra told staff writer Mike Potter after the verdict about whether The Flume should name the young woman who accused her. "You should," she said. "People want to know, because my name was out there. ... It's kind of defamation of character to, you know, put somebody's name out there, and put all the ugly stuff, and then not be fair and say, 'actually this is the truth. See what this person did.'" "Will the real victim stand up. I felt victimized," she added. Both she and her husband, Dan Spykstra, said it was only fair to name the accuser. It's important to note that up until the Spykstra trial, there was no way to get the name of the alleged victim through court documents; the name was blacked out. That is mandated under Colorado law (C.R.S. 24-72-304 (4), which states the victim's name "shall be deleted from any criminal justice record" in a sexual assault case. It doesn't matter whether that person is a juvenile or not, noted Deb McLimans, clerk of courts at Park County Combined Court. The current tradition of not naming the alleged victim in a sexual assault case is embraced by most newspapers and most members of the electronic media, and it has generally also been the policy of The Flume. The no-naming policy for the most part has been based on two assumptions: naming the alleged sexual assault victim re-victimizes her; and it discourages other women from coming forward after they've been sexually assaulted. The no-naming practice dates back to at least the 1960s, when women's groups started pressuring newspapers to adopt the policy. Three points I want to make three main points about this policy: 1) There are strong arguments that the names of alleged sexual assault victims should be used throughout (see No. 3 below). But if our society is not ready for across-the-board naming of such alleged victims, as some have asserted (see the 1991 New York Times article cited below), what about adopting a hybrid policy until it is? Under such a policy, at the least, the alleged victim would be named in cases in which charges are dropped or the defendant is found not guilty. Going even further, the hybrid policy would incorporate instances in which the victim appears in open court. 2) Technology is making the policy irrelevant. Not only is the Wild Wild West of the Internet (see Mark Glaser's story in the Online Journalism Review at www.ojr.org/ojr/glaser/1059084839.php) making alleged sexual assault victims' names public on established Web sites, but anyone who finds out such a name can broadly disseminate it by setting up a special Web site for that purpose, using online chat rooms, Facebook, Twitter, broadcast e-mails, or even creating an online encyclopedia article on Wikipedia as long as certain criteria are met. 3) There needs to be a fresh examination of the underlying assumptions that being named as an alleged victim of sexual assault involves a "stigma" that is so different from being named a victim of any other crime. At the very least, the alleged victim should be contacted by the media, directly or indirectly, to see whether she wants her name released. In the Spykstra case, the alleged victim was sent such a message through one of the prosecutors, and she did not want her name used. No. 1 The first point really has two parts, and the first pertains to those instances of dismissal of the case or a not guilty verdict. The argument here is simple: As far as the state is concerned, the crime will no longer be prosecuted, so there is no defendant, and, logically, no "alleged victim." That's why The Flume quit using that term "alleged victim" after the not guilty verdict in the Spykstra trial. (Even the word "accuser" is not quite right, because technically it's the state that is the official accuser in the case.) After the Spykstra verdict, the state was no longer alleging that a sexual assault occurred, and so there no longer was an alleged victim, at least in the eyes of the state. That put the female accuser in another category. Whatever "stigma" may have attached to naming that female with respect to sexual assault would logically no longer apply. Therefore, it might be argued, she should no longer be protected under the traditional no-naming policy. The same argument holds for dismissals. One example in which a dismissal led to an ouster of the no-naming policy by some media was the Duke lacrosse alleged sexual assault case of 2006. It was dismissed after the state attorney general took over the case, called the prosecutor a rogue prosecutor, and said the three lacrosse players were innocent. Fox News, MSNBC and 60 Minutes are among the major media outlets that named the accuser after that happened, according to Wikipedia. In a case in which the alleged victim appears in open court, most of the argument for using the name has to do with the fact that all the people in the court will know the name and can make it widely known, as indicated in No. 2. No. 2 When a hotline e-mail from The Flume about the naming issue was sent to editors of the International Society of Newspaper Editors, some members indicated that deciding on whether to name the alleged victim should not be influenced by how widely known her name was after she testified in open court. Yet The New York Times took a different posture in 1991. After the Globe tabloid named the accuser of William Kennedy Smith (a member of the Kennedy political family), the Times and NBC eventually followed suit in naming the accuser, according to salon.com at http://www.salon.com/life/feature/2003/10/31/kobe/print.html). Kennedy was acquitted. Wikipedia names the accuser in the Kennedy case, the Duke lacrosse case, and the Kobe Bryant case, in which the famous professional basketball player was accused of sexual assault in 2003. That leads to the odd situation in which anyone using a computer can get the names of the accusers in those three cases within seconds with a simple word search that leads to the online encyclopedia, but the majority of media in the United States - and that includes The Flume and this column - can't print the names and still abide by the no-naming policy. Millions of people in China who speak English and have access to a computer can find the alleged victim's name in the Bryant case through Wikipedia. Any fifth-grader in that censored society could easily write a book report using the victim's name, but most media in the land of the free have a self-imposed policy that they cannot. Does that make sense? It's not just Wikipedia. The power of Facebook and Twitter has been made evident in revolts in Arab nations in the last few months. Any member of the public who was at the Spykstra trial could use that power or other techniques to make the name of the accuser widely available, regardless of the policy of The Flume. (The name is still not available through court documents.) No. 3 A key question in the entire debate is whether the underlying assumptions of the no-naming policy are sound. Is there really a special stigma attached to alleged victims of sexual assault? A viewing of "The Girl with the Dragon Tatoo" movie would indicate otherwise. And if there is a stigma, is this no-naming policy a good way to deal with it? A 2007 story in the American Journalism Review, at http://www.ajr.org/article.asp?id=4380, states the following: "For Geneva Overholser, printing an accuser's name is the only acceptable decision in nearly all instances. Overholser, who teaches at the Missouri School of Journalism, was editor of the Des Moines Register when it won a Pulitzer Prize in 1991 for a story on a rape victim, who agreed to let the paper publish her name." 'In the long run, we'll never get rid of the stigma if we don't treat these like regular crimes,' says Overholser, who makes exceptions for cases involving minors. She also argues that naming the accused and not the accuser is unfair. 'It's just not ethical to make a choice about guilt or innocence, which is effectively what we do,' she says. 'It makes us look like we are assuming innocence on one part, guilt on another. We should not be determining who deserves our protection.'" A 1991 New York Times article (at http://query.nytimes.com/gst/fullpage.html?res=9D0CE0DB1039F932A15757C0A967958260&pagewanted=1) notes that even women's groups are divided about whether to support the no-naming policy. It cited the National Organization for Women as a supporter but the Women's Rights Project of the American Civil Liberties Union as a detractor. "There are feminist arguments why it might not be a bad idea to name the victims," said Isabelle Katz Pinzler, the director, in the article. She noted that it might be a step toward destigmatization. And what about the argument that the alleged victim of sexual assault is further traumatized by having her name in print? "Joanna Connors, a Cleveland Plain Dealer columnist who wrote a personal narrative in 2008 about her experience as a rape victim, said she believes more and more victims are going to want to start being identified - in part because it's more acceptable to do so, but also because it can be a powerful part of the healing process," according to an article at The Poynter Institute Web site (at http://www.poynter.org/latest-news/top-stories/119968/lara-logans-attack-was-an-exception-the-stories-we-miss-about-rape-and-sexual-violence-those-we-tell/). That raises an interesting point. Under what psychological theory is keeping something secret - keeping a traumatic event hidden - a foundation for better mental health? If there is indeed additional trauma associated with being named an alleged victim in a sexual assault case, how much different is it than being named an alleged victim in any other case? A Time magazine article from 1990 said that Deni Elliott, then-director of Dartmouth's Ethics Institute, contends that "ultimately we're doing women a disservice by separating rape from other violent crimes." (See http://www.time.com/time/magazine/article/0,9171,969776,00.html.) The assumption that a sexual assault victim is less likely to come forward if she believes her name will be in a newspaper is also subject to challenge. Charlie Gay, the former editor of the Shelton-Mason County Journal in Washington state, said in a March 19 e-mail: "We were the only newspaper in our state to cover trials by naming all witnesses. ... We researched sexual-assault reporting rates in the four counties surrounding us. The reporting rates were much higher in our county." That may seem counterintuitive, but according to Gay, he has the data to show that women were more likely to report a sexual assault in his county, where they would be named. Maybe, just maybe, there's a causal connection there. Maybe, just maybe, the people in that county have a healthier attitude toward sexual assault than any county in the state, and it's because the newspaper prints the names of the alleged victims that more sexual assaults are being reported. Isn't that what some women are arguing? That it's better to get it out in the open? And is there a really a stigma attached to a woman who has been raped? Is it not preposterous to think less of a woman because some man used superior strength to overwhelm her? For those newspapers that hold to the no-naming policy, doesn't it make sense that, at the very least, they should give a rape victim the chance to have her name named and to stand proud because she is willing to recount painful details and trying to keep the accused from doing it again? And when she's asked, perhaps she'll answer: Anyone who would stigmatize me for something someone else did to me is someone I wouldn't want to associate with anyway. This is what it is. Print my name. And move on. |
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3:31 AM Jul 11