Why reporters should let potential sexual assault victims talk off the record

Most of the time, it’s a good thing when a news outlet pushes its sources and subjects to talk on the record. But a controversy that has dogged the St. Louis Post-Dispatch this summer offers an example of when it isn’t.

The controversy began last month, after the Post-Dispatch reported that a former aide to Gov. Jay Nixon, a Democrat, had had an affair with the former state House speaker, a Republican. That revelation came from a police report about an investigation that began when the former aide approached police to say that she might have been sexually assaulted by an unknown assailant. (The affair, which was unrelated to the possible assault, had come up as the woman spoke to police about the night in question.)

The woman’s name, and many details of a night out drinking in the state capital, were included in the Post-Dispatch story—and criticism of the article was swift and fierce. “Slut-shaming,” the alt-weekly Riverfront Times called it. A Poynter writer worried that the article indulged “dangerous master narratives of sexual assault.” Scrutiny came from other sources both national and local.

The paper’s defense was essentially twofold. First, the story had political significance. The revelation of the affair between a then-aide to the governor and a then-top legislator in the other party, which provided the hed and lede of the story, “raises questions about the impact of such a relationship on public business,” Post-Dispatch political editor Christopher Ave said in a subsequent statement on the paper’s website.

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Secondly, from the paper’s perspective, it was not necessarily violating the general taboo against naming sex-assault victims without their consent because there was no solid evidence that a rape had occurred—or even that one was being alleged. The article cites the police report to quote the woman, who had blacked out for a period of time on the night in question, expressing uncertainty about whether she had been assaulted. The police told the paper that the case was closed because no evidence of a crime had been found, and because the woman had ceased to cooperate. “Not only was there no evidence of a sexual assault, no one was alleging a sexual [assault], the woman was not alleging a sexual assault,” Ave told KMOX radio in an interview. In the same interview, he added: “She still may be a victim. We don’t know, that is the truth. I don’t know, you don’t know, we weren’t there. We don’t know what happened. All we have is the police report.”

Indeed, the story was based almost entirely on the police report—the woman, Brittany Burke, had declined to be interviewed by the Post-Dispatch, and gave only a one-line statement.

Then, earlier this month, a major follow-up story in the Riverfront Times offered new reason to doubt the judgment of the Post-Dispatch. The story, by freelance writer Andy Kopsa, argued that the police investigation had been mishandled. It revealed that Burke strongly disputes the idea that she had stopped cooperating with the investigation and wanted it closed. And it reported that a hospital nurse examining Burke had found abrasions consistent with assault—a detail that wasn’t in the Post-Dispatch story.

Kopsa also reported something else that matters for understanding the controversy: When the Post-Dispatch approached Burke with questions stemming from a police report about an investigation into whether she had been sexually assaulted, the reporter, Virginia Young, refused to talk to Burke off the record.

A long-respected, veteran statehouse reporter, Young took a buyout from the newspaper and retired earlier this month. She was out of the country when I contacted her via Twitter direct message to ask whether she had made the on-the-record stipulation, and if so why. “Off record is overused,” she wrote in reply. “People aren’t accountable.”

In reply to questions from CJR, Ave, the editor, responded via email: “We have decided to let our statement speak to your questions. The story was a difficult one involving public officials, and our team of journalists carefully considered all options as we reported, wrote and edited it.”

Burke herself, in a statement to CJR, had harsh words for the Post-Dispatch, arguing that it missed the real story of police mishandling of the case as later presented in the Riverfront Times—and made clear that she suspects she was assaulted: “The St. Louis Post-Dispatch could have exposed the pattern and culture of victim shaming surrounding sexual assault investigations. Unfortunately, Virginia Young and her editors only perpetuated the cycle. They had a chance to be someone’s voice. Instead, they exploited a rape victim all over again.”

We can’t predict with certainty what would have happened had the Post-Dispatch agreed to talk with Burke off the record. But doing so would have been the right move. And had the paper opened a discussion with Burke by letting her talk off the record, Young and her editors might have heard her side of the story before publishing—which might in turn have prompted the paper to reconsider publishing Burke’s name and details of the night in question.

Young’s point that off-the-record stipulations—and similar arrangements like background briefings—are overused is true in general of political reporting, and there’s been some healthy conversation about that in journalism circles. But insisting that sources and subjects be on the record is a way to hold accountable people who wield power. Talking to someone who is a possible sexual-assault victim presents a different set of considerations.

“A person who has been sexually assaulted has experienced a significant loss of power,” said Bruce Shapiro, director of Columbia Journalism School’s Dart Center for Journalism and Trauma. “The reporters who are really best at interviewing sexual-assault victims understand that you can approach them in a way that gives them a certain amount of control—while letting them know you still have to corroborate their account.”

Kopsa, who wrote the Riverfront Times article, is a New York-based freelancer who has filed reports around the globe telling the stories of those who have survived sexual assault and other traumatic events. Allowing a possible victim to speak off the record if he or she prefers, Kopsa says, is not only acceptable but a “best practice.”

“You have to take your lead from the victim,” Kopsa says. “The benefit of the doubt is always given.”

In this case, Ave’s comments in the radio interview suggest that the Post-Dispatch wasn’t necessarily treating Burke as a victim—but that’s exactly what might have been up for re-evaluation, had the paper heard her side of the story. Police in Jefferson City, the state capital, told CJR—as they had indicated to the Post-Dispatch—that in Burke’s last interview with police, she said repeatedly that she wanted the investigation to end. That’s why the case was closed, and the report released as a public record.

But Burke says that’s not the case. As the RFT first reported, she learned the case was closed only when reading about it in the Post-Dispatch. Her attorney, David Steelman, says she cooperated with police: “We continue to dispute the claim of non-cooperation,” he said in a statement to CJR.

An awareness of that basic factual dispute–even without taking into account broader concerns about how sex-assault cases are handled, or the findings of the nurse’s report–might have prompted the Post-Dispatch to understand this case differently.

Or, as Shapiro said, by allowing Burke to talk off the record, the paper “could have not only shown respect to the woman but also found out more about whether this was newsworthy.”

Getting Burke’s side of the story may have convinced Young and her editors that there was more substance to Burke’s concerns about a possible rape than the police seemed to accept; that while the case was officially closed, it quite possibly should not have been; that the limited news value of the story did not merit the risk of shaming, stigmatizing, or even traumatizing a possible rape victim—and in the process potentially making future victims think twice about coming forward; and that if the broader story of potential conflict of interest and politicians’ misbehavior needed to be told, there was surely another way in.

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Deron Lee is CJR’s correspondent for Iowa, Missouri, Kansas, and Nebraska. A writer and copy editor who has spent nine years with the National Journal Group, he has also contributed to The Hotline and the Lawrence Journal-World. He lives in the Kansas City area. Follow him on Twitter at @deron_lee.