The Accused: Background Material

Syllabus

Source 1: People Who Ignore Evil (http://people.brandeis.edu/~teuber/puzz17.html)

A man chooses to ignore a child tied up and stranded on railroad tracks, because he is busy with his errands. Later, a train kills her. In what manner (ethically or legally) and for what crime, if any, is he guilty?

COMMENTARY

Commentary. In the commentary following the fifteenth puzzler there was speculation about the difference between killing and letting die and it was suggested that there may not be that great a difference in John's decision to let the trolley continue on its path or to turn it onto a side-track. Here we have a somewhat different case in that John is not in a situation such that whichever way he chooses lives will be lost. The question here is simply whether John ought to be liable or punishable for failing to rescue the child. This puzzler is adapted from an imaginary case put forward by a Judge at the turn of the century to illustrate a principle of our present criminal justice system: few states require citizens to aid others unless they have a legal duty to do so. Here is how the Judge put the matter in 1897:

Buch v. Amory (1897)

With purely moral obligations the law does not deal. For example, the priest and the Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might and morally ought to have prevented or relieved. Suppose A, standing close by a railroad, sees a two year old babe on the track and a [train] approaching. He can easily rescue the child with entire safety to himself, and the instincts of humaity require him to do so. If he does not, he may, perhaps, justly be styled a ruthless savage and a moral monster, but he's not liable in damages for the child's injury, or indictable under the statute for its death . . . There is a wide difference ‹ a broad gulf ‹ both in reason and in law, between causing and preventing an injury; between doing by negligence or otherwise a wrong to one's neighbor, and preventing him from injuring himself . . .

Case law suggests that there are four sets of circumstances in which courts have decided that persons have a duty to rescue: "First, where a statute imposes a duty of care to another; second where one stands in a certain [special] status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the helpless person as to prevent others from rendering aid." John's situation above fits none of these situations readily.

Every European country has a duty to rescue law on its books. Most recently, these laws have been the subject of some interest in the international press because the photographers who pursued Princess Diana's car through the streets of Paris were threatened with prosecution under France's "duty to rescue" law for their failure to aid Princess Diana and the others involved in the accident.

Some of you, too, may have watched the final episode of Seinfeld where the entire cast was arrested for their failure to respond to a mugging which took place right under their noses. The premise of the episode was to highlight Jerry's, George's, Elaine's and Kramer's indifference to the plight of others in episode after episode throughout the entire nine years of the series. The final episode was long on premise and somewhat short on substance, but its poking fun at Good Samaritanism was anything but Un-american. Only five states (Massachustts, Rhode Island, Vermont, Minnesota and Hawaii) have enacted "Good Samaritan" laws. Vermont's law reads in part as follows:

Any person who knows that another is exposed to grave physical harm shall, to the extent that the same can be rendered without danger or peril to himself or without interference with important duties to others, give reasonable assistance to the exposed person unless that assistance or care is being provided by others

The Minnesota statute notes that "Œreasonable assistance' may include obtaining or attempting to obtain aid from law enforcement or medical personnel." Massachusetts and Rhode Island enacted their "Good Samaritan" laws, one year after an incident that took place in Big Dan's Tavern in New Bedford, Massachusetts, in March 1983 where more than ten bystanders were witnesses to a rape at the Tavern, but none of the bystanders made an effort to stop it or call the police, although a public phone was only a few feet away. You may recall that a film was made based on this case with Kelly McGillis and Jodie Foster, called The Accused. You may have seen it. In the actual New Bedford case two of the onlookers were charged as accessories to rape and were acquitted, prompting the Massachusetts and Rhode Island legislatures to enact "duty to rescue" statutes requiring citizens of those states who witness a crime to telephone the police. What do you think? Should more states enact "duty to rescue" laws?

Source 2: Viewing Rape Victims as Guilty?

From: Columbia Journalism Review

November/December 1992 | Contents

Books

RAPED AGAIN?

VIRGIN OR VAMP: HOW THE PRESS COVERS SEX CRIMES BY HELEN BENEDICT OXFORD UNIVERSITY PRESS. 299 PP. $ 22.

review by Susan Rieger
Rieger, a lawyer and free-lance writer, is dean of Ezra Stiles College at Yale University.

On its surface, Virgin or Vamp is an exercise in press criticism. In its heart, it's a book with a mission. While its "first and foremost" purpose is to look at the ways newspapers perpetuate the myths and stereotypes surrounding rapes and other violent crimes against women, its "purpose" is "ultimately to show reporters and editors how to cover sex crimes without further harming the victims."

The book's basic premise is encapsulated in its title. According to its author, Helen Benedict, the press tends to treat the victims of sex crimes either as virgins, good girls who didn't do anything, or vamps, bad girls who were "asking for it."

Benedict has her work cut out for her. At one point in her research she asked Hap Hairston, then city editor of Newsday, why his paper didn't consider societal attitudes toward women in its coverage of sex crimes. His answer oozed white-collar machismo: "That kind of journalism is thumbsucking journalism."

In her attempt to change this kind of thinking, Benedict takes an in-depth look at four famous sex crimes: the Greta and John Rideout case, the first case of marital rape in this country; the New Bedford gang rape, which became the source of the Jodie Foster movie The Accused; the Jennifer Levin-Robert Chambers case, known in the press as the "Preppy Murder" case; and the case of the Central Park jogger. Each one provides her with an opportunity for showing up a different aspect of the press's "myth-saturated" coverage of sex crimes.

In the Rideout case, Benedict explores the myth that rape within marriage isn't really rape. A popular myth which still enjoys widespread legal recognition in this country, it perpetuates the old notion of a man's right of access and a woman's duty to submit. As a California legislator was quoted as saying after the Rideout case, "If you can't rape your wife, who can you rape?"

The first of its kind, the 1978 Rideout case evoked skepticism and suspicion in many journalists. Pulitzer Price-winner Mike Royko treated the Rideouts -- and the crime -- as a joke. "As most people know," he wrote in his syndicated column, "Greta, 23, recently accused her husband, John, 21, of raping her. She also said he hardly ever brushed his teeth and did not bathe regularly . . . Women's groups howled that Greta was only the tip of the oppressed iceberg, that wives were being raped in droves by their husbands. Luckily for John, the jury believed him. Or at least it did not believe Greta. In either case, John was found not guilty and avoided being sent to Oregon State Prison, where he surely would have suffered the humiliation of other prisoners pointing at him and teasing: 'He raped his wife; he raped his wife, the sissy.'" Did Royko mean to suggest that "real" men rape other men's wives?

The Washington Post's William Raspberry, while more serious, was equally dismissive. Quoting with approval a letter in The New York Times, Raspberry wrote: "In a situation where a husband compels a wife to have sexual intercourse against her will, there cannot be the same traumatic experience. There may be resentment or injured feelings, but the overall effect cannot be compared to rape by a stranger." The underlying assumption here is that marital rape is a species of sex rather than a species of wife-battering. Benedict provides the necessary corrective. In a case of marital rape, she writes, "not only is the victim terrified, but she has been betrayed by the very person she thought would protect her."

The second case, a 1983 gang rape in Big Dan's, a New Bedford bar, was a classic "vamp" case. The victim had every one of the eight characteristics that rape myths attach to bad girls. She knew her attacker; no weapon was used; she belonged to the same race, class, and ethnic group as the men who raped her; she was young; she was attractive; she had been "asking for it."

The crime was a horrific one. The young woman was repeatedly raped by a group of men while others stood around watching and cheering.

Initially, press coverage was sympathetic to the victim; a gang rape, even when the accuser knows her attackers, is a hard thing to stomach. Here, the additional specter of the cheering bystanders put the press firmly on the victim's side. Memories of Kitty Genovese hovered.

By the time the case came to trial, the tide had turned, at least in the local paper. The first accounts in the Standard-Times had identified the accused rapists as Portuguese, and early stories made persistent references to their ethnic background. These stories unleashed vicious anti-Portuguese sentiment in the larger New Bedford area, and the Portuguese community, reacting to the slurs, rallied round the accused rapists, organizing defense funds and accusing the press of creating "a psychological state of siege toward a particular ethnic group." The fact that the victim was also Portuguese seemed lost on everyone.

At the trial, the defendants and their lawyers went on the attack. The victim wanted sex; she didn't resist; she was a liar; she was drunk; she was wild and promiscuous; right before the alleged rape, she had been sitting naked on the pool table, smoking marijuana; she was a welfare cheat. The papers reported all of these accusations, as well as your-typical-man-in-the-street comment: "I'm for the guys more than the girl," nineteen year-old Ernie Santos of Fall River, a floor-sander, told The Providence Journal. "I mean, what was she doing there in the first place? I think she was looking."

The most controversial story was a jailhouse interview with one of the defendants published in the Boston Herald. Under the headline BIG DAN SUSPECT: SHE LED US ON, the article began: "In a dramatic, exclusive interview, a Big Dan's defendant said the young woman pleaded for sex on a pool table after 'getting all friendly' and drinking heavily." The reporter, John Impemba, had originally done the interview for the Standard-Times, but James Ragsdale, the editor, refused to publish it, calling it "fatally flawed" and a "marshmallow interview." Undeterred, Impemba took it to the Herald.

When the trial ended in convictions, the attacks against the victim redoubled. Three days after the verdict, she left town, hounded out by a wave of violent threats against herself and her family. The local papers barely noticed.

Anti-victim crusades have their logic. As Benedict points out, blaming the victim makes it easier for the rest of us to sleep at night. We feel safer when we can believe that bad things only happen to bad people. We don't want to be reminded that most rapes, like most murders or most robberies, are crimes of opportunity.

Although the Rideout and New Bedford cases generated slews of articles, the Preppy Murder case is the sort journalists love best: a crime among their own kind. On August 26, 1986, eighteen-year-old Jennifer Levin was found strangled in Central Park. Shortly afterward, the police arrested Robert Chambers, the last person to be seen with her. It was a story sent from tabloid heaven. As Bill Hoffman, a reporter for the New York Post, remembered fondly: "We were listening to the police radio. We heard the words Central Park, young white teenager, gorgeous and strangled, and it was like TNT was planted under our rear ends. . . . It was sex, tits and ass, and a strangling -- we knew it would sell."

One of the more interesting aspects of the Levin-Chambers case had to do with the press's credulity. The early stories bought and sold Robert Chambers's version of the crime: he said he had accidentally strangled Levin after she squeezed his testicles during sex. The Post's headline read: JENNY KILLED IN WILD SEX.

Reporters were taken in by Chambers largely because they couldn't believe that a big, handsome, white boy with money in his pocket would, in Benedict's words, murder a girl "on purpose" and "without provocation." The Post's Hoffman acknowledged the media's blind spot: "It took a long time for the press to realize what a total scumbag Chambers was." It swallowed the line dangled before them by Chambers's wily lawyer, Jack Litman: "The sad part of this story," he said in an interview, "is that this could happen to anybody's kids."

Litman knew reporters. Out of "the time-honored journalistic impulse to find a moral lesson in every case," the New York papers churned out stories about teenagers who stayed out drinking all night. Under the headline KILLING IN PARK RAISED DIFFICULT QUESTIONS FOR AFFLUENT PARENTS, New York Times reporter Samuel Freedman asked readers: "Having some parents in demanding, high-paying professions substituted money for affection and freedom for supervision?" The message was clear: Jennifer Levin was murdered, not because she had the bad luck to date a "scumbag," but because her rich, divorced parents didn't put her on a curfew.

The last case in Benedict's book, that of the Central Park Jogger, is interesting because the crime was treated exclusively as a race crime, not a sex crime. To a man, the press saw it as a story about a "wilding" spree, not a gang rape.

By almost every standard, the attack on the jogger was a classic gang rape. As Benedict observes, "gang rape is overwhelmingly committed by teenage boys on a lone female, and is likely to involve more sexual humiliation, beating, and torture than single-assailant rapes." The major anomaly was the race of the perpetrators. "Most gang rapists are white," Benedict explains.

In article after article, the newspapers looked everywhere else for explanations for the crime; at various times, drugs, class, the ghetto's "culture of violence," rap music, the lack of a death penalty, television, movies, schools, boredom, peer pressure, the full moon, Mayor Koch -- in short everything but misogyny -- were all cited as possible causes. in an opinion piece in Commentary magazine, Richard Brookhiser "wrote an entire essay about the media's attempt to find explanations for the crime, and never mentioned it as a crime against women once."

When Benedict pursued the issue with reporters and editors, they tended to shrug off her inquiry. Michael T. Kaufman, then metropolitan reporter, now deputy foreign editor of The New York Times, was blandly dismissive: "I can't imagine the range of reaction to the sexual aspect of the crime would be very strong." Another editor at the Times, Paul Fishleder, agreed: "Racism is the big story in New York. Men-women relations, or whatever you want to call them, are not."

Patrick Clark, then a court reporter at the Daily News, provided a more thoughtful response: "Why was the story covered in terms of race as opposed to gender? I guess because the city desk is made up of male whites."

When Virgin or Vamp went to press, the Palm Beach rape story was just breaking. It vividly confirmed Benedict's thesis. While the alleged rapist, William Kennedy Smith, was pursued by photographers, the alleged victim, Patricia Bowman, was hounded by reporters, most famously in The New York Times. In The Girls in the Balcony, her recent book on women at the Times, veteran journalist Nan Robertson recounts with relish the storm that broke at the Good Gray Lady the day the Times ran an indepth profile of Bowman.

The story was comprehensive. It not only told of the young woman's speeding tickets, poor grades, "wild streak," and out-of-wedlock child; it chronicled her mother's rise in the social world from executive secretary to Executive Wife. Its headline, LEAP UP SOCIAL LADDER FOR WOMAN IN RAPE INQUIRY, seemed to suggest, albeit inadvertently, that a rape, in the right circumstances, by the right person, could boost a young woman's social standing.

Robertson wrote: "The morning the profile appeared, the Times building exploded." In a palace revolution, the women at the Times accused the editors of betraying the paper's standards, characterizing the story as an "outrageous smear -- sexist, class-ridden, a nasty piece of work riddled with negative quotes from anonymous sources."

At first angry and defensive, the editors soon grasped the heat and depth of the rage they had unleashed, not only among their staff but also among readers. Worried about the paper's reputation, they issued a disclaimer. In an Editor's Note, they said that readers of the Times had inferred that the "detailed biographical material" about Ms. Bowman and her family "suggested that the Times was challenging her account." They explained: "No such challenge was intended, and the Times regrets that some parts of the article reinforced such inferences." Was this an apology? As Times columnist Anna Quindlen wryly observed: "First they blamed the victim. And then they blamed the reader."

When Robertson asked one of the editors responsible for the story if he had learned anything from the episode, he replied, "I never thought that rape was something people took lightly, but the power of the subject to provoke volcanic rage is a revelation to me. . . . I knew how to handle sensitive material about Jews and Arabs, but not about this. Now I will be hypersensitive and cautious. I've heard a lot of screaming from the depth of people's souls, and I'll remember. That awareness alone could serve me as an editor."

Speaking of the Levin-Chambers case to Benedict, the Post's Hoffman was less repentant. "My answer is that tabloids shouldn't stop writing about women that way, they should just write more about men the same way. Everything should be wild and flashy."

Waxing rhapsodic, Hoffman went on: "As a tabloid newspaperman, you thirst for a story like that. You know people love to read it, that it will get big play. Even if you're writing garbage, as long as people read it is the main thing." He explained: "We're in the business of selling newspapers, and the public thirsted after that story."

Benedict doesn't buy it. Citing a 1985 poll by the American Society of Newspaper Editors indicating that most adults "think the press takes advantage of ordinary people who become victims of circumstance," Benedict accuses the press of "blaming its exploitative impulses on a public that does not approve of them." Who, then, was buying all those copies of the Post?

Virgin or Vamp is an important book, but it is also an irritating one. At almost every turn, its intelligent analyses and perceptive observations are undercut by its censorious tone.

Benedict is also the author of Recovery: How to Survive Sexual Assault. Her experience researching and writing that book has unfortunately left its mark on this one. Too often, Benedict sounds less like a press critic than a victims' rights advocate. In her discussion of the New Bedford gang rape, for instance, Benedict consistently uses a pseudonym for the victim even though she's been dead for years and her real name is "widely available now in records and news reports." Benedict explains: "I do not wish to perpetuate the pain of the rape and its memory on her family." Similar pieties abound.

Benedict's sermonizing not only blunts legitimate debates over problematic issues like naming the victims of sex crimes; it threatens to alienate her audience, including those who might be accused of practicing "thumbsucking" journalism. That would be too bad.

Virgin or Vamp makes an airtight case. It's not only the Senate Judiciary Committee and the Navy brass who "just don't get it." As Benedict makes very clear, most of the media haven't a clue.