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.
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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.Skip to next paragraph
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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."