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Greg Kelly - AP

A few days ago a woman filed a complaint against Greg Kelly, the son of NYPD Commissioner Ray Kelly, alleging that he raped her last October.  She said that they met on the street where they agreed to go out for drinks.  After meeting for drinks on October 8, 2011, they then went back to her office where she works as a paralegal – which is where she said the sexual assault took place.  She said that the incident caused her trauma and she also became pregnant but terminated the pregnancy.

The allegations are troubling and sickening.  But Kelly strenuously denies them.  And although he has not made a formal statement concerning what happened in that office last October, all of the newspaper and internet reports on the incident consist of three parts.  First, there’s a shiny, glossy picture of the alleged perpetrator.  Then there are the damning and unfavorable snippets of information about the victim (such as she was intoxicated at the time, and that the two communicated frequently by text messages and phone calls after the encounter).  And at the end of each article, is a list of Kelly’s glowing career accomplishments (such as his tenure as a news anchor on a popular morning television show, his work as the White House correspondent for Fox News from 2005 to 2007, and his four decades of service as a fighter pilot in the Marine Corps).

Is Kelly an accused rapist, or is he applying for a job? It’s impossible to ignore Team-Kelly’s blatant attempts to sway the opinions of the public (and potential jury pool) into believing that a man as handsome as Kelly with such an outstanding career and influential family would never commit such a heinous crime. 

It is noted that at this point, these are only allegations.  And although it is true that anyone can go into any precinct, at any time, and file a complaint against any person for any reason – (based on fact or fiction or both), once the complaint is filed, the wheels of justice are supposed to take over – starting with an investigation by the police department.  If there is probable cause to believe a crime was committed, then an arrest should follow.

But how likely is it that the victim in this case will get a fair shake?  How can she compete with the Kelly mass media campaign blitz, and the other circumstances which are working against her, such as the conflicted interest of the DA’s office and the effects of the rape shield laws?

First, she should consider hiring an attorney.  Victims of crime are  represented by the DA’s office.  However, the complainant in this case may also need her own private attorney to stop the leaks and return fire in the media.  Her attorney will probably undertake some sort of campaign which will allow the public to associate a human face with her alleged tragedy in a tasteful and strategically effective manner.  And although she should not attempt to try the case in the court of public opinion, the ability to humanize her plight will be helpful.  We saw this in the Dominique Strauss-Kahn (DSK) case.  Although that complaint was dismissed, many who viewed the victim’s television interview said that they were able to sympathize with her. 

The victim should also consider asking for a special/outside prosecutor in the case.  The alleged perpetrator is the son of the NYPD Commissioner.  Although it was reported that the NYPD transferred the investigation to the Manhattan District Attorney’s Office in order to avoid any appearance of a conflict of interest, how impartial can the DA’s office be since it works so closely with the NYPD in criminal prosecutions?  The DA’s office can be viewed as an arm of the PD.  Maybe that’s why Assistant DA’s are given police shields which they brandish freely during investigations and when they are stopped for traffic violations.

And while some say that the victim’s predicament can be blamed, in part, on the limitations placed on the press by rape shield statutes, the Supreme Court of the United States ruled in the case of Florida Star v. B.J.F, that the First Amendment does not prohibit the media from publishing information about the victim of a sexual assault.  In addition, the victim could always waive her right to bring a claim for privacy violations against any media outlet she gives an interview to.

Rape shield statutes are necessary.  They protect victims of sexual assault against the introduction of evidence at trial that is irrelevant to the question of the defendant’s guilt or innocence such as evidence about a victim’s sexual history, reputation or past conduct.

And although rape shield laws do not protect victims from pre-trial publicity, the press and media outlets typically extend the protections of the rape shield laws to pre-trail publicity and refuse to publish any information about the victim or the events in the complaint.  But, in this age of Twitter and YouTube where information travels faster than the speed of light, victims can no longer remain silent in the face of vigorous, one-sided PR and smear campaigns initiated by their alleged perpetrators any longer.  Victims need to consider removing the shield in order to fight back.