Naming Names: Was Cornwell Wrong?

Much as it pains me, a serious issue was raised at Jezebel, albeit in its inherently nasty and ignorant way:

Cornwall twit

Yes, this involves the Jameis Winston debacle, but that’s not the point of this post. The question is whether his attorney, David Cornwell, was wrong to publicy out the accuser.

According to the Orlando Sentinel, it’s something he’s done flagrantly in the past as well

As he has done multiple times in the past, Cornwell opted to name the accuser, an action typically not taken during ongoing sexual assault claims. Cornwell, however, has asserted those claims have been proven unfounded by the criminal justice system.

Holy shit, this is some fucked up, disgusting garbage. This attorney is a complete shitbag.

Rebecca Rose, the writer of the Jezebel post, certainly has a way with words.  Unsurprisingly, the attorney for the accuser similarly agrees that Cornwell’s revelations are inappropriate:

 “Mr. Winston’s lawyer apparently likes to bully people and he has spent great efforts to get her name out there,” said John Clune, an attorney for the woman. “That kind of intimidation tactic isn’t going to get him very far here.”

It’s unclear how this has anything to do with bullying, but then, that may reflect my bias toward words having meaning.

It’s true that the Florida State University investigation into the accusation resulted in a finding that the evidence was insufficient.  This finding has been challenged as a dubious reflecting of FSU’s favoring a star quarterback, giving rise to a Department of Education Title IX challenge and the reopening of the case.  Regardless of any thoughts about the propriety of this action, the sole question here relates to Cornwell’s use of the accuser’s name.

Most media has taken a voluntary stance of not publishing the name of an alleged victim of rape or sexual abuse, whether to protect the person’s privacy or prevent outside contact that might be intimidating, embarrassing or otherwise hurtful.

This has raised hackles on the defense side, given that the name of the accused person is smeared everywhere.  The primary problem isn’t that the name of the accuser is kept confidential, but that it’s kept confidential while the name of the accused, presumed innocent, is not. Why the lack of parity?  Certainly, the innocent accused can’t unring the bell of false rape accusations, and the innocent accused is as worthy of protecting his reputation from permanent harm as the accuser.

Naturally, Jezebel couldn’t give a damn about the nuanced question, as it tends not to show a great deal, much, any concern whatsoever for the possibility that the male didn’t do it.  But we are not constrained by Jezebel’s, or its readers’, self-serving and dangerous view of the world. We can be more thoughtful about the issues raised.

There is no question that a rape accusation will taint a person. And given the permanence of the internet, it will likely taint a person in perpetuity.  This is wrong, and the reality is that the media has never cared a whit about the harm it might do to the presumptively innocent defendant. What else is new?

But the fact that the media, with the full support of the brain trust at Jezebel, smears the accused before it is determined that a crime (or offense, since this is about college) has occurred, and if so, who committed it, does not justify doing similar harm to someone in the name of some misguided sort of parity.  It’s wrong that the media does it to the accused. It’s wrong that it be done to the accuser.

To the extent the defense stands on the moral high ground in challenging the disclosure of information about an innocent defendant, we give that away when we do what we complain should not be done to our client.  Just as our client has not been proven guilty, the accuser hasn’t been proven a liar either.

Outing the accuser may serve one salutary purpose, in that it may aid the defense in gaining information about the accuser’s credibility.  If the name is not disclosed, others who may have relevant information won’t know to come forward, and that would serve to deprive the defense of its ability to conduct a thorough investigation.  Clearly, depriving the defense of its ability to investigate would fail to suffice under basic due process.  There is no entitlement to conceal an accuser’s lack of credibility because of the inchoate potential that she might be hurt by disclosure.

Then again, the same rationale applies to the defendant, where disclosure might cause others to come forward with additional accusations showing a similar scheme or plan, or creating a response to claims of mistake.

Where Jezebel raises the issue in its singular function to bolster its agenda at the expense of brain cells, there are real reasons why the disclosure of identities of both accuser and accused might serve a legitimate purpose. That said, purposeless disclosure, whether for the sake of embarrassing a person or out of some mean-spirited angst over the lack of parity of confidentiality, is needlessly harmful.

To the extent viable, both accused and accuser’s identities should remain confidential.  Yes, it sucks that the media (and, of course, cesspools like Jezebel) care nothing about the harm it might do an innocent defendant, but that is not a reason to exacerbate the harm by doing to the accuser what should be done to no one.  Just because the people at Jezebel wouldn’t show you the “kindness” it demands for itself is no reason to join them in the gutter.

22 thoughts on “Naming Names: Was Cornwell Wrong?

  1. EH

    The problem is that this:

    “…purposeless disclosure…for the sake of embarrassing a person or out of some mean-spirited angst over the lack of parity of confidentiality…”

    seems, in most cases, to be objectively indistinguishable from this:

    “…gaining information about the accuser’s credibility…where disclosure might cause others to come forward with additional accusations showing a similar scheme or plan, or creating a response to claims of mistake.”

    And there are two more views which are relevant here:
    One is the belief (wrong in my view) that full disclosure of everything will eventually lead to less social opprobrium for accusations, because their effect will be diluted by commonality. That doesn’t seem to work, though. And the other is that the widespread publication of that information will make people less likely to be swayed by media lies regarding the frequency of accusations, the rate of convictions, and so on. I think that the second one has some merit, which is why I generally support disclosure.

    1. SHG Post author

      So you are incapable of objectively distinguishing between Cornwell’s twit, where he gratuitously outs the accuser, and a defense call for any information that would aid in determining a person’s credibility? Well, okay then. As to your two additional “relevant” views, meh. But thanks for relieving the tension of those readers who wonder, what does EH think?

      1. EH

        Come on, SHG: half the posts here take note that the distinction between “gratuitous” and “justified” is pretty much in the eyes of the beholder. And when it comes to other folks you haven’t hesitated to note that the subjective approach is pretty bad in terms of outcomes.

        Saying we shouldn’t do it when it’s “gratuitous” is not any more of an objective rule than those which classify some silent cross-street stares as “harassment.” As I expect you would say in other contexts: what’s next, telling Cornwell that he should include magic words to make his statement fit someone else’s model of speech?

        If you want to know whether it was gratuitous or rationally decided, ask Cornwell.

        1. SHG Post author

          Did you think I was proposing a law to impose some penalty for gratuitous use that requires carefully drawn parameters to overcome constitutional scrutiny?

  2. JCC

    Whether fair or not, it is true and always has been so that those accused of crime will suffer some damage to reputation and standing. I do not see that posing this as a question of fairness (by possibly exposing the ostensible victim to similar damage) to be a reasonable proposition. Also, although I do not see it within the OP, I’ll suggest that allowing an alleged victim of a sexual battery to be publicly named undoubtedly has a chilling effect on the likelihood of victims in other, similar crimes in reporting them. I say this as one experienced in the investigation of sex-based crimes. While I understand (and agree) that the rights of the individual in a specific instance assume priority over the general example, I think this should be a consideration.
    And I think the potential of publicizing the name of a claimed victim in social media as a means of determining the veracity and general reputation of same, as opposed to what is available via pre-trial/hearing discovery, is a somewhat lame concept. Is the lawyer in the post going to advertise in the local paper, for example? “Know Ms. X? Have any good gossip? Slept with her? Call the law offices of Cornell, XXX-XXXX”

    1. SHG Post author

      Your chilling effect point is a good one, but one that also cuts both ways. That said, I would expect it would prevent women from bringing legitimate accusations far more than false ones. But while that would be a concern for media, it would not be a legitimate concern for defense counsel, whose duty is to the accused rather than public policy.

      As for what is available via pre-trial discovery, there is none in campus adjudications, so that argument is completely lost. In criminal prosecutions, it’s completely unreasonable to expect the prosecution to possess/provide anything undermining the accuser’s credibility, so that argument is somewhat lost.

      And finally, your example of what a lawyer might write is a silly strawman. You had some cred up to then, but blew it on that nonsense. It wasn’t worth it, as it was such an obviously poor effort.

      1. JCC

        “…such an obviously poor effort.”

        Without context, undoubtedly so, but considering the original internet nature of Cornell’s revelation (of the alleged victim’s identity), not so unrealistic. And frankly, how would you go about disclosing the accuser’s name in order to glean such general reputation for integrity and/or sexual misadventure as you might be seeking?
        Your point that defense counsel has responsibility only to your client is well taken, and perhaps the sole response required.

        1. SHG Post author

          First, Cornwell. Cornell is a university with no relation to the case.

          Second, I thought Cornwell’s twit improper, gratuitous and wrong. Mention of the accuser’s name was spiteful, nothing more.

          Third, the point of disclosing a name for a legitimate purpose doesn’t presuppose that I have a mantra in mind; I’m talking about the propriety of the motivation, not the specific language I recommend to be used. That said, how about:

          The Cornwell firm is seeking information with regard to Susan Smith, as a complainant in a criminal matter in which we are trying to verify Mr. Smith’s credibility and the accuracy of certain allegations made. We would greatly appreciate anyone having information about Ms. Smith to contact the firm in confidence.

          Not too smarmy. That’s off the top of my head.

          1. JCC

            Cornwell = Cornell, speaking of smarmy, but I guess I asked for that.

            “That said, how about:…”

            OK, I could buy your suggestion. I don’t see a legitimate complaint as structured, although I suspect an investigator or intern would be out asking questions as the primary source of the claimed victim’s veracity.

            1. JCC

              No problem. A girl I was madly in lust with in high school went on to Ithaca, leaving us hicks behind. My father was convinced that Cornell was rife with bearded pinkos and other subversives, and insisted I go to a good RC midwestern place.

            2. JCC

              I suspected as much. I’ll tell him. This should save him having to post in the local paper’s personals.

              In Florida, although it has been the subject of successful constitutional challenge and subsequent rewrite, there is a statutory mandate – with criminal sanctions – against revealing (public official) or publishing the identity of a sexual assault victim, at least until it becomes the subject of judicial proceedings, when the entire subject falls under the authority of the judiciary. I wonder how Cornwell manages to avoid such issues. It may be local prosecutors sensibly avoid what the legislature has wrought.

            3. SHG Post author

              I would assume because there are no pending criminal charges or prosecution, she isn’t a “victim” under the law. To the extent anything has been done with regard to the allegations, it was determined that the evidence was insufficient. I don’t think the law protects accusers of insufficient evidence, regardless of the nature of the accusation.

  3. John S.

    It always seems funny (sad funny) how so many internet soapboxes occasionally manage to latch onto the racism and rigged nature of the justice system, and then immediately ignore it when their sacred cow of choice comes up. While we may be dealing with a facsimile of the actual criminal justice system I still find it amazing when a black man is accused of rape and somehow the concern becomes that he’s the one that they system is rigged for. How these people manage to hold both outrage over Fergusen and Jameis Winston in their minds simultaneously is beyond me.

  4. Marc J. Randazza

    Holy shit, this is some fucked up, disgusting garbage. This attorney is a complete shitbag.
    Rebecca Rose, the writer of the Jezebel post, certainly has a way with words.

    I think I might be in word love.

  5. George B

    There is, of course, one major exception to the “name the accused” rule. That’s when the accused is a cop. Then suddenly, it’s often a secret errr “a personnel matter”…..

    1. SHG Post author

      That goes along with not rushing to judgment, as we can’t possibly know what really happened without a thorough investigation which last slightly longer than most people’s interest.

  6. Peter Gerdes

    Unfortunately, there can’t be a middle ground.

    Let’s assume you are genuinely falsely accused of rape (name dragged through mud etc..). Just as if you were falsely accused of any other crime it would both be a reasonable response and serve the interests of justice (deter similar claims…suppose it’s a ploy to sue for money) to release the name of the accuser. But now not releasing the name of the accuser as you would in indignation at the false accusation would make you look guilty, after all you wouldn’t be concerned about the welfare of someone lying to make a buck off of you. So the equilibrium is everyone’s name gets out.

    But not all problems have solutions and sometimes the best situation is imperfect. There are many areas in law where you have to just suck up the fact that people, such as rape victims, have to bear painful burdens.

    For normal (non public figure) lawsuits I suspect both sides could reach an understanding not to publicize the issue. But once any big name is involved nothing short of an unconstitutional gag order can make it happen.

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