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Media challenge order not to publish names of priest sex-abuse victims

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  1. Prior Restraint

    News Media Update         MASSACHUSETTS         Prior Restraints    

Media challenge order not to publish names of priest sex-abuse victims

  • Citing the state’s rape shield law, a trial court judge barred publication of the names of priest’s accusers, one of whom has spoken publicly about his allegations.

Jan. 7, 2005 — A Superior Court judge ordered Boston-area news media Tuesday not to publish the names of the accusers of defrocked priest Paul Shanley.

One of the alleged victims, who prosecutors say might refuse to testify if he is publicly identified, waived his right to privacy when he consented to previous news photos and stories that disclosed his identity, an attorney for Boston media organizations reportedly told a judge Thursday during a hearing to challenge the do-not-publish order.

Lawyers for The Boston Globe , the Boston Herald and the Associated Press challenged the order by Massachusetts Superior Court Judge Charles Spurlock during a hearing before Judge Stephen Neel, who is scheduled to preside over Shanley’s trial later this month.

“This individual in fact waived his privacy interest. His photograph appeared all over the place with his consent. He made a conscious decision to put his name out there,” Robert A. Bertsche, representing the Globe and the AP, said during Thursday’s hearing, according to AP.

Neel had not ruled on the media’s challenge as of Friday. He did, however, vacate a portion of Spurlock’s order instructing the media to retract the already-published names as soon as possible.

Attorney Elizabeth A. Ritvo, who represents the Herald, called prior restraint of the press “the biggest harm to the Constitution, from the First Amendment perspective.”

Since Shanley was arrested three years ago and charged with numerous counts of child rape and indecent assault and battery, two of his alleged victims have spoken publicly about the case and were regularly identified in news articles, according to AP. Shanley originally was charged with assaulting four people, but prosecutors dropped two alleged victims from the case and plan to drop a third. The lone accuser remaining may refuse to take the witness stand if he is publicly identified during the trial, Assistant District Attorney Lynn Rooney reportedly told Neel.

The man’s name was used in early versions of an AP story on Tuesday, but was removed after Spurlock issued his order. The Associated Press has a policy of not identifying alleged rape victims if they wish to remain anonymous.

Spurlock’s order cited Massachusetts’ so-called rape-shield law which makes it a crime “to publish, disseminate or otherwise disclose the name” of an alleged sexual assault victim. Violation of the statute could result in a fine of as much as $10,000. A check of legal databases indicates the constitutionality of the law likely has never been challenged. Massachusetts appellate courts often cite the law when using pseudonyms for rape victims in published decisions.

A U.S. Supreme Court case, Florida Star v. BJF , holds that when a newspaper publishes truthful information which it obtained lawfully — in that case, the name of a rape victim — punishment may be imposed only when “narrowly tailored to a state interest of the highest order,” and that no such interest was served by imposing liability on a newspaper for violation of Florida’s rape-shield law.

(Commonwealth v. Shanley; Media counsel: Robert A. Bertsche, Prince Lobel Glovsky & Tye, Boston; Elizabeth A. Ritvo, Brown Rudnick Berlack Israels, Boston) KK

© 2005 The Reporters Committee for Freedom of the Press

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