Is the rape-shield law working?
Personal details about Kobe Bryant's accuser are slipping into the press and courtroom - a serious setback, some say, for rape-case reform. But others argue that Kobe Bryant's lawyers are simply giving him the best defense possible.
A trial date for Kobe Bryant has yet to be set. The Lakers star hasn't even entered a plea. Yet Americans following the high-profile drama of last June's alleged rape - and many who aren't - are already well-versed in rumors of his accuser's "American Idol" aspirations, suicide attempts, drug abuse, and sexual history. Anyone who cares enough to do a Google search knows her name as well.Skip to next paragraph
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These are the sort of details, supposedly, that were no longer going to enter the courtroom in a rape case, after years of reform efforts and rape-shield laws. And even in the Bryant case, they may never be admitted as evidence. But this week, the woman is answering questions about some of those rumors directly, facing Mr. Bryant for the first time since the alleged rape occurred, in a closed-door, pretrial hearing to determine what, if any, information about her past should be admitted in a trial.
It's a development that some are calling a misuse of the rape-shield law and a setback for rape-case reforms, while others see it as evidence of the system working as it should, or even of faults in a process that may keep an innocent man from using all tools to defend himself.
In the past eight months, the Kobe Bryant case has become the bellwether for the way rape is viewed and tried in this country, whether reforms have had any real effect, and the tricky balancing act courts must perform in weighing the rights of the accused against the rights of the victim - all while trying to ensure that justice is served.
"The law is trying to protect people in Kobe Bryant's position, and also people in the woman's position, and those are competing interests," says Craig Skinner, a criminal defense lawyer in Denver. "It's a constant balancing act that the court has to deal with. But the beauty of the rape-shield law is that it's a built-in protection process."
Not everyone agrees the protection process is working in this case, however. No matter what ultimately gets admitted to court, many Americans, and most likely the future jurors, know about the wrangling over the victim's underwear, and whose semen stains it contained, or about the defense's theory that this fits into a pattern of attention-getting behavior - issues that critics say could prejudice a jury. It could also make future victims fearful that their past will be investigated as ruthlessly as this woman's has been.
During a preliminary hearing last October, after a day of graphic testimony about the prosecution's case against Bryant, most of the news was about defense lawyer Pamela Mackey's bombshell question near the end of the day: whether the injuries could "be consistent with someone who had had sex with three different men in three days."
With questions like that, designed to paint a picture of the accuser as promiscuous, the woman "is the victim of this defense-at-any-cost mentality, in a case where because there's so much at stake, the beating she's taking is unbelievable," says Wendy Murphy, a former sex-crimes prosecutor who now teaches at the New England School of Law.
So far, she adds, the Kobe Bryant case has exploited every myth about women except the "virgin" myth: "That women are mentally ill, and vindictive, and lie for sport. That false allegations are common, and women like men to force themselves on them because they're not allowed to be sexually aggressive. Even the idea that the injuries are a result of Kobe's size is a kind a race myth."
Those sorts of suggestions - and their implication that certain women are more likely to be lying, or that they "had it coming to them" - are exactly what rape-shield laws were designed to prevent.
Most states' laws were enacted in the 1970s, as a recognition that a rape victim's sexual history is too often used against her in court - and that it prejudices juries yet provides little evidentiary value.
Many people view the laws as a way of keeping the victim's name from being dragged through the mud, or a way to encourage more reporting about a crime on which the vast majority of victims remain silent. But the laws' most important function is not protecting the victim but preventing prejudice from getting in the way of an accurate verdict, says Michelle Anderson, a professor specializing in rape law at Villanova University's School of Law. "They're a protection of the truth-seeking process."