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.

By , Staff writer of The Christian Science Monitor

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.

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.

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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."

She and others agree there are some cases in which information about the accuser is relevant - Colorado's rape-shield law, like most other states', allows for some exceptions - but stress that judges must use caution.

In this case, Bryant's lawyers argue that the accuser's sex life is valid evidence because it offers another explanation for the vaginal abrasions she suffered, and because a sexual encounter after the alleged rape - an occurrence prosecutors vehemently deny happened - might show she had not acted like a typical rape victim. But in the 2002 case The People v. Harris, the Colorado Supreme Court ruled that prior consensual sex could not be admitted of evidence of alternate injuries because it had no bearing on the issue of consent in the alleged rape.

In the Bryant case, then, "I would want pretty persuasive evidence that this sex before could have or was likely to have caused the injuries," says Professor Anderson. "The judge is going to have a really hard time balancing these issues."

Others see it as a less delicate question. Along with the woman's reputation, they say, what's at stake is a man's freedom, and Bryant deserves the opportunity to defend himself in every way. All these allegations - that the woman had sex with men before and after Bryant, that she attempted suicide and abused drugs, that she might have plans to write a book about this ordeal - "raise reasonable doubt," says Craig Silverman, a Denver trial lawyer and former district attorney.

"I'm all for victims' rights," he says. "I'm just trying to figure out who the victim is here - whether it's her or Kobe Bryant." The question of whether she had sex in the 15 hours between the alleged rape and going to the hospital is a particularly crucial one, he says. "Whoever loses on this issue will lose a lot."

Everyone agrees the hearings this week will be painful and embarrassing for the accuser. But while some, like Ms. Murphy, say they run counter to the intent of the rape-shield law - even offering a rationale for an investigation into the victim's personal life that wouldn't exist without the law - others argue that the questions will be less painful behind closed doors than if they were to come up in an open courtroom.

The flood of salacious details in this case means that even if the accuser's charges against Bryant are true, her past makes her an unfortunate poster child in such a high-profile case, Mr. Silverman says.

"I think this will be a setback for true rape victims for years to come," he says. "But I don't blame Kobe Bryant for that, and I don't blame his lawyers. I think the fault appears to lie with the prosecutors who brought what appears to be a fatally flawed case."

While the trial has yet to be scheduled, the battle for public opinion has been under way for eight months. The Bryant case is atypical, of course, since it involves a superstar. "This will be a trial both by public opinion and by a set of jurors," says Villanova's Anderson. "There's no question the defense team is aggressively painting her in a negative light."

"They're doing all the things they're supposed to be doing to provide Kobe Bryant with the best defense they can," says Mr. Skinner. "It's not sleazy. It's appropriate and even admirable from the defense-lawyer point of view.... You can never lose sight of the fact that someone is being accused of something that could cause him to spend his life in prison."

Still, the tactics have many wondering whether the high-profile nature of the case renders the rape-shield law nearly useless. Most jurors will hear allegations about the victim's past whether or not a judge deems them admissible in court.

"In an ordinary case, you can see the whole plan [of the rape-shield law] working much better," says Roger Park, a law professor at the University of California's Hastings College of Law. "The purpose was to keep everything confidential until there's a decision. Now, even though the hearing's secret, you know some of the theories and so on. It's not how the rape-shield law was intended."

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