Unorthodox Exception Or Preferential Treatment?

by Jonathan Turley
April 25, 2012

There is an interesting story out of Brooklyn. The Brooklyn District Attorney routinely releases the names of charged individuals — as do all prosecutors. However, Brooklyn District Attorney Charles Hynes has decided not to release the names of Orthodox Jews charged with child sex abuse in deference to their "tight-knit and insular" community. That seems like preferential treatment given a particular religious group — a group with considerable political power in New York.

We have previously discussed the difficulty experienced by victims of child abuse in the Orthodox Jewish community — an experience with many analogies to the response of the Catholic Church in past years.

Hynes insists that the 'tight-knit' nature of the Orthodox community makes it impossible to disclose the identities of abuse suspects without also identifying their victims. Instead, he imposed an exception for Orthodox Jewish defendants that has not been applied to any other known group. This followed a refusal to release the names under a demand through New York's Freedom of Information Law.

Assistant District Attorney Morgan Dennehy insisted that the Orthodox Jewish community is "unique" and that the names of the charged would allow the identification of the victims. However, the fact that the community is so tight knit would also presumably mean that the charges against individuals would be known to other people in the community. Moreover, the withholding of the names can endanger other minors who may have contact with them without their parents knowing of the charges. It would also mean that other victims may not learn of the charges and come forward — something that we have seen in other cases.

There appears to be 85 Orthodox Jews arrested on sex charges during the past three years — presumably the community is already aware of many of their identities since they have had to get lawyers and be processed in the criminal justice system.

Dennehy also claimed that revealing the names would undermine the operation of the DA's special hotline, Kol Tzedek, or Voice of Justice — set up to deal with victims in the Orthodox community. She suggested that it might deter victims from coming forward. Yet, it may also encourage such victims since the Orthodox community has been accused in the past of covering up abuse and harassing victims. Now victims could see actual cases of prosecution and compare their own experiences in light of such charges.

I believe that the preferential treatment given this religious community is deeply disturbing and unjustified. We have previously seen extraordinary measures by city leaders to accommodate the hasidic community in its view of women and clothing styles. It is difficult to explain to other defendants why they are named (and mugshots released) but others are not. It appears that a defendant need only be a member of the Orthodox Jewish community to be able to claim an exemption from public identification. If you are a member of another religion or an atheist, you are out of luck because you are not "unique." What about insular Muslim or small evangelical communities?

The preferential treatment given this group undermines not only principles of separation of church and state but the public right to know about public charges in the criminal justice system. The media often allows the public to monitor the actions not just of accused persons but the government itself. The Court has stressed that,

"...responsible press has always been regarded as the handmaiden of effective judicial administration, especially in the criminal field. . . . The press does not simply publish information about trials, but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism."

- Sheppard v. Maxwell, 384 U.S. 333, 350 (1966).

The decision of the District Attorney in this case in my view is fundamentally at odds with fair and equal treatment in the criminal justice system.