As the rape case against basketball star Kobe Bryant proceeds, expect to see the alleged victim's past on trial too - both inside and outside the courtroom.
A Colorado judge allowed the case to go forward Monday one week after Mr. Bryant's defense attorneys introduced lurid evidence of the accuser's other sexual experiences at a preliminary hearing.
Like most states, Colorado has a "rape shield law" that generally protects victims from disclosures about their sexual conduct or reputation before or after an alleged assault. But the Colorado law includes two exceptions: evidence about prior sexual conduct with the defendant and evidence that might show the acts charged were not committed by the defendant.
Now, in the highest-profile criminal prosecution since O.J. Simpson's trial a decade ago, the balance between a defendant's right to a fair trial and an accuser's rights under the rape shield law will be tested.
The disclosures already made in the Bryant case show that rape shield laws don't completely prevent allusions to the sexual history of accusers. Advocates of victims' rights say such disclosures show precisely why rape shield laws are necessary, arguing that a defendant's guilt or innocence should related to his or her own behavior, not that of the alleged victim.
"[The rape shield laws are] not complete protection," says Paul Campos, a law professor at the University of Colorado. "They give rape victims some protection against being blindsided by the introduction of information about their sexual past, but it's far from complete protection by any means."
Defense attorneys continue to look for ways to circumvent protections of rape shield laws, says Claudia Bayliff, a Niwot, Colo., attorney affiliated with the NOW Legal Defense and Education Fund. "The goal is make the victim appear promiscuous and as a result appear less likely to tell the truth," she says.
Defendants have good reason to want to provide jurors with as much information as possible about victims' sex lives. Social-science research suggests jurors are as likely to assess defendants' guilt based on their view of victims' virtue as based on physical evidence presented, says David Bryden, a University of Minnesota law professor.
Jurors consider whether a victim resisted, complained promptly, or had a good reputation. "They do give weight to whether the victim behaved in a circumspect way or in a careless way and whether she appears to be sexually restrained or unrestrained," says Mr. Bryden.
Even the strictest rape shield laws can do little to protect accusers from embarrassing disclosures in celebrity cases such as this one. Details about the alleged victim were made public in the media soon after Bryant was accused of sexually assaulting her in June at a Colorado resort where she worked as a concierge. Her name was posted widely on the Internet, and a nationally syndicated radio talk-show host repeated it on the air.
Last week's preliminary hearing showed her experience might be no more pleasant in the courtroom. Pamela Mackey, Bryant's defense attorney, blurted out her name several times - despite Judge Frederick Gannett's warnings.
Yet that may have been the least of the prosecution's problems. Ms. Mackey said the victim's undergarments provided physical evidence that she had had sexual relations with other men in the days before the alleged attack. This could
undermine the prosecution's argument that the victim's internal injuries were caused by Bryant.
Although it's usually too early to judge a case based on what is presented at a preliminary hearing, legal experts say the prosecution will have several obstacles to overcome. Evidence presented indicates that the accuser went out of her way to meet Bryant in his hotel room and offered conflicting accounts during her initial interviews with investigators about whether she verbally consented. "All of this is quite problematic," Mr. Campos says.
The victim's psychological history may also become an issue. Defense attorneys have already requested copies of her mental-health records.
A final decision to admit evidence about sexual encounters with other men will be made by the trial judge. But legal experts say it's likely to be included. Even if the evidence is excluded, it will help Bryant's efforts to influence public opinion and potential jurors.
"Mr. Bryant is waging two different battles: in the legal arena and popular opinion," says Michelle Anderson, a Villanova University law professor. "This evidence his legal team is trying to admit is going to determine the outcome in both of those arenas."