Ruling by the Press Ombud
29 August 2017
This ruling is based on the written submissions of Prof Billy Gundelfinger, on behalf of the Frankel family, and those of Kerry Cullinan, managing editor of Health-e News, on behalf of the Daily Maverick (DM) online publication. (Health-e News Service has supplied the article to Daily Maverick.)
The Frankel family is complaining about an article in the Daily Maverick of 13 July 2017, headlined Health-e News: A rape survivor never forgets.
Complaint
The Frankel family complains that both the article and the headline stated as fact, or at least implied, that the late Sidney Frankel had raped Ms Marinda Smith (53) when she was a child – while he was never charged or accused of rape, nor did he ever face criminal charges for indecent assault.
Gundelfinger says the headline as well as the omission of the word “alleged” have caused the Frankel family great humiliation, embarrassment and distress.
The text
The article recounted a narrative by Smith, who spoke about the impact that the sexual “abuse by dead billionaire Sidney Frankel from the age of five” had on her.
Health-e News
In general, Cullinan says:
· Gundelfinger has laid a complaint against the article on behalf of a client/s he does not name;
· Frankel’s reputation cannot be posthumously impaired; and
· Two of those who report being abused by Frankel are also his family members, which means that the “Frankel family” is not a homogenous entity that can suffer such emotions (humiliation, embarrassment and distress) as a single unit.
‘Raped’
Cullinan says the current definition of rape incorporates all forms of sexual penetration without consent, including penetration of sexual organs by fingers and objects – Smith’s report that Frankel had penetrated her vagina with his fingers would therefore constitute rape.
Never accused or criminally charged with rape
Cullinan rejects the argument that Frankel had never been charged or accused of rape, or had criminal charges laid against him for indecent assault.
He says Frankel died (in April 2017) some months before the “Frankel Eight” successfully challenged and overturned the statute of limitations on prosecution of sexual assault after a 20-year period.
He argues, “Their intention always was to challenge Frankel in court on charges of rape and sexual assault. He died before this could take place and before the court ruling on the statute of limitations on sexual assault was made. Smith, along with seven other victims, has been part of a very public, high-profile case against Frankel for three years.”
The editor also submits that criminal charges were laid against Frankel by the Frankel Eight, which means that he did “face” charges. “The only reason why the NPA refused to prosecute Frankel was the 20-year prescription period for ‘sexual offences’. The Eight subsequently challenged and managed to get the prescription period overturned. However, Frankel died before this ruling, making it impossible for him to go to court to face these charges.”
He adds that, aside from Smith, two other women (Ms Nicole Levenstein and Ms Katherine Rosenberg) also reported in interviews with the TV programme Carte Blanche that Frankel had penetrated their vaginas with his fingers. “Thus, Frankel certainly has been accused of rape by at least three people according to our contemporary understanding of rape,” he surmises.
‘Alleged’
Cullinan says the omission of “alleged” in the article was not an oversight as there is “a large body of evidence – proof – that supports the reports by [the] Frankel Eight of sexual abuse by Frankel and, in the case of the story in question, Smith’s story of this abuse”.
To substantiate this “sufficient body of evidence” in support of Smith’s narrative, he mentions the following:
· Health-e reporter Ufrieda Ho has had extensive interviews with two of the Frankel Eight, and had access to the affidavits of all eight, which report a very similar modus operandi by Frankel to get children alone in order to sexually abuse them – in the bath, in his swimming pool, at the beach or at his various homes, including a guest farm, as well as similar ruses to touch them, such as rubbing cream or Vaseline on their sexual organs;
· Ho also had an extensive interview with Ian Levitt, the lawyer representing the Eight, who said that, aside from these eight, at least ten other people reported sexual abuse by Frankel when they were children, but who do not wish to be named;
· The Arcadia Jewish Orphanage confirmed to Carte Blanche that Frankel had been barred from visiting children at the orphanage following complaints by the children;
· Reports about Frankel being a paedophile have been in the public domain for a long time:
o The first public report on Frankel’s activities came to light in 2014 in a detailed article in Noseweek. This report also does not refer to allegations but provides detailed reports of the abuse;
o Examples of other coverage are available;
o The SA Jewish Report carried a number of reports on the Frankel case, and two of the articles made reference to widespread rumours about him and the sexual abuse of children over a number of years; and
o In one article, author Vanessa Valkin says she recalls hearing rumours of Frankel’s paedophilia when she was a child, along with reports that Frankel had “been in therapy to deal with his paedophile tendencies”.
· The article in dispute was written as Smith’s personal testimony. This was made clear in the sub-headline, which states “Marinda Smith speaks about the impact of this on her life”. The second paragraph stated: “… who says she was abused by billionaire Sidney Frankel from when she was about five until about 13 years old.” His journalistic call was that Smith was not fabricating anything that she shared for this article; and
· Not everything has to be proven in a court of law in order for it to be established as accurate and true. For example, Adolf Hitler was never convicted in court for ordering the extermination of Jews in the Holocaust, but the media do not have to say “Hitler’s alleged involvement in the Holocaust”, as his role is a well-established fact.
Headline
Cullinan says in light of the large body of evidence against Frankel, reporting what Smith remembers in the unfiltered way of her memory was not “reckless”, “irresponsible” or “unprofessional” – Smith merely recounted her experience.
Gundelfinger
Gundelfinger replies that the:
· applicable legislation to Smith’s complaints is the Sexual Offences Act, 32 of 2007, under which Smith’s allegations (if true) would constitute indecent assault, not rape;
· intention of the “Frankel Eight” is irrelevant – Smith instituted action separately, and sought a consolidation of her action with seven other plaintiffs;
· reference to other members of the family is irrelevant, as they are not part of the article complained of; and
· statement that Frankel has been accused of rape by others is inaccurate, untrue and irrelevant.
He adds, “Perhaps the most concerning admission raised in the [response to the complaint] is the journalist’s statement that there was careful consideration to omit the word ‘allege’. Since when does a journalist become a judge in any matter? The allegations were denied by Frankel. The fact that some of the Plaintiffs, including Smith, may have publicly made statements referring to what they alleged too place does not detract from the fact that these allegations have not been tested in any Court of law through cross-examination. It was irresponsible and reckless of the journalist to frame the allegations as statements of fact and this requires and demands a retraction and apology.”
Analysis
The complaint is about the use of the word “rape” in the headline, and its possible suggestion in the article, as well as the reporting of allegations of “indecent assault” as fact.
A clear distinction between what can be stated as fact and what should remain as an allegation is at the essence of this complaint, and of its adjudication.
There can be no issue with the (rather vivid) description of Smith’s recollection of events – she has a right to recount her memories and to state, as fact, from her perspective, what has happened to her.
I also take into account that Frankel is deceased, and that a deceased person cannot be defamed.
Being in the public interest and having been in the public domain for so long, it also goes without saying that the media have the right to report such information. The question is not if the media may report such recollections, but how it should be done.
I am satisfied that the article mainly presented the information as coming from her – read: allegations, presented as fact, as remembered by Smith. So far, so good.
However, the distinction that I have referred to now comes into play. It is one thing for a publication to report allegations as fact coming from someone like Smith, and quite another to take over such an allegation and state it as an “objective” fact.
In the following instances the publication spoke from its own mouth, and not from Smith’s:
· The introductory sentence read, “Abused by dead billionaire Sidney Frankel from the age of five, Marinda Smith speaks…”;
· The story added, “While the abuse took place over 40 years ago…”; and
· The headline stated as fact that Smith had been raped.
Given the “body of evidence” submitted by Cullinan, I can understand why he believes that Frankel was guilty of rape / sexual assault.
However, a journalist should not allow his / her beliefs to become “facts” (whether Frankel stood accused on charges of sexual assault or rape is also of no consequence to this adjudication – fact is that he has never been found guilty on a charge of such crimes).
Given this situation, stating the allegation that Frankel had sexually abused Smith as fact lost sight of that specific context, which in turn resulted in unfair reportage.
In this instance, I also need to take into account the effect of such reportage on Frankel’s family, or at least on some of them.
(I mention in passing it is not true that Gundelfinger did not identify on whose behalf he was lodging this complaint – he did state it quite clearly in his first correspondence with the DM).
In conclusion, therefore: DM was justified to quote Smith as stating, as fact, that Frankel had sexually abused her (whether this can be described as rape or not is not relevant to the adjudication); the same does not go for the publication’s own statements of fact to this effect.
Finding
The complaint about the reportage where Smith was quoted, stating as fact that Frankel had sexually abused her, is dismissed.
The statements of fact that Frankel had abused Smith which were not attributed to her (twice in the article, as well as in the headline) was in breach of Section 1.3 of the Press Code which states, “Only what may reasonably be true, having regard to the sources of the news, may be presented as fact, and such facts shall be published fairly with reasonable regard to context and importance. Where a report is not based on facts or is founded on opinion, allegation, rumour or supposition, it shall be presented in such manner as to indicate this clearly.”
Seriousness of breaches
Under the headline Hierarchy of sanctions, Section 8 of the Complaints Procedures distinguishes between minor breaches (Tier 1 – minor errors which do not change the thrust of the story), serious breaches (Tier 2), and serious misconduct (Tier 3).
The breaches of the Press Code as indicated above are all Tier 2 offences.
Sanction
Daily Maverick is directed to apologise to the Frankel family for stating, as fact on its own accord (twice in the article as well as in the headline), that Frankel had sexually abused Smith.
The publication is requested to publish the apology prominently, with a headline containing the words “apology” or “apologises”, and “Frankel family”, together with the part which I have dismissed.
The text should:
· be published at the earliest opportunity after the time for an application for leave to appeal has lapsed;
Appeal
The Complaints Procedures lay down that within seven working days of receipt of this decision, either party may apply for leave to appeal to the Chairperson of the SA Press Appeals Panel, Judge Bernard Ngoepe, fully setting out the grounds of appeal. He may be contacted at Khanyim@ombudsman.org.za.
Johan Retief
Press Ombud