Kobe Bryant's alleged sexual assault has generated the usual media circus that follows criminal charges against professional athletes, especially for sex crimes. But even with all its tawdry details, the case raises some serious issues about the way the justice system treats rape complainants and defendants.
Bryant, the 25-year-old Los Angeles Lakers guard, is accused of assaulting an 18-year-old woman who was working as a concierge at a Colorado resort where he was staying in June 2003. Bryant, who is married, has admitted to having sexual intercourse with the woman but claims it was consensual; his accuser says he gripped her by the neck and forced her to have sex despite her protests. In October, Eagle County Judge Frederick Gannett ordered Bryant to stand trial even while noting that the evidence presented by the prosecution was weak.
The defense tactics have been widely assailed by feminists, victim advocates, and other commentators as a sleazy exercise in victim trashing—particularly after an October 10 open court hearing in which lead Bryant attorney Pamela Mackey repeatedly mentioned the alleged victim's name despite the judge's ban on its public disclosure and suggested that the woman had had sexual relations with several other men in the days before her encounter with Bryant.
A typical reaction came from Cynthia Stone, an activist with the Colorado Coalition Against Sexual Assault: "Trying to shift the blame is a standard tactic for rape defendants, but this was a new low in attacking the victim." Earlier, the defense team had come under fire for trying to obtain the young woman's mental health records. (Colorado laws will probably prevent them from doing so.)
The spectacle of a young woman coming forward to bring rape charges against a wealthy, powerful man and being smeared with what feminist legal theorist Susan Estrich once dubbed a "nuts and sluts" defense is disturbing on a visceral level, and not just to feminists. But if Bryant is innocent—which is a presumption accorded to him in a court of law, and which in this case may well be true—it should be equally disturbing to think that a man accused of a despicable crime, one that potentially carries a sentence of life in prison, could have his hands tied when he tries to defend himself.
Take the issue of the complainant's therapy records—something that former Colorado prosecutor Amy Hitch, who successfully argued for excluding such evidence before the Colorado Court of Appeals, says should be brought into a rape case only if the prosecution makes an issue of it first. The desire to protect a victim's privacy is more than understandable, particularly in a sexual assault case. But what if a woman who says she was raped has a history of mental instability that could be relevant to the credibility of her accusations?
In 1991 similar issues were raised in a Maryland case involving charges of rape against a realtor named Gary Hart (no relation to the politician). His accuser, a 34-year-old cocktail waitress, claimed that they had been dating platonically and that she was staying at his house overnight when he brutally attacked her (although there was no evidence of the struggle she described). According to Hart, they had been sexually involved and the woman got angry when he told her he was going on a trip without her.
Hart was acquitted after a controversial trial in which the defense stressed the woman's emotional instability, her tendency to react to rejection with sometimes violent rage, and her history of making fantastic claims of sexual assault to police and to psychiatrists.
The relevance of this evidence seems obvious. Yet prosecutors and victim advocates reacted as if the woman had been subjected to a gratuitous, vicious character attack. A letter in the Baltimore Sun complained that even if the alleged victim was not raped, she suffered "a brutal form of abuse…inside the courtroom." Yet if Hart was actually innocent, he was subjected to far worse abuse. Not only was he put on trial, but his name, unlike that of his accuser, was all over the papers; the negative publicity forced him to sell his business.
Hart, at least, was acquitted. In the same year, James Everett of Liggett, Washington, was convicted of raping a woman he had met through a dating service. He spent a year in prison before her story fell apart—partly because she reported an eerily similar man from the same dating service (who was exonerated) but also because Liggett was able to hire a private detective who found out that she had a history of mentally unstable behavior, including dubious claims of rape.
In Oregon, James Anderson was accused in 1989 of raping a fellow patient at a substance abuse clinic. He subsequently served a prison term. Anderson may or may not have been innocent, as he claims; but the case against him was based solely on the woman's testimony, and her serious credibility problems were kept out of the courtroom by the judge's application of the rape shield law.
While the prosecution said the woman failed to tell clinic staffers about the alleged rape because she was reluctant to discuss such "intimate details" with them, the suppressed records showed that the day before the incident, she had talked to the same counselors about an earlier rape and sexual abuse by her brother. Moreover, she had given several different and contradictory accounts of her supposed earlier victimization.
Courts in Iowa, Pennsylvania, Washington, and other states have ruled that evidence of an earlier false or dubious rape complaint by the accuser can be suppressed in a rape trial—even if it is relevant to the question of the defendant's guilt or innocence.
Even excluding all evidence of the woman's past sexual activity may not be the cut-and-dried issue it seems at first glance. In the Kobe Bryant case, for instance, the defense attorney's much-criticized claim that Bryant's accuser had very recently had sexual relations with two other men appears to have been corroborated by physical evidence.
Obviously, this does not mean (as the courts often assumed in the bad old days) that she must have been willing to have sex with Bryant as well, or that she was "asking for it." But it could provide an alternate explanation for the trauma to the woman's genitals found by the medical exam. Thus, in fairness to the defendant, it should be admissible.
Ironically, as Estrich noted in 1991, the greater willingness of prosecutors to pursue sexual assault cases in which the use of force is minimal and there is little corroborating evidence of injury makes the issue of the woman's credibility much more important, and thus gives the defense a greater incentive for attacks on her character. The courts have to walk a fine line between allowing complainants to be smeared and preventing defendants from fully confronting the witnesses against them.
For some feminists, of course, there is only one side to this issue. After the 1997 trial of sportscaster Marv Albert, defending the judge's decision to admit compromising information about Albert's sexual past but not about his accuser's, feminist attorney Gloria Allred decried "the notion that there's some sort of moral equivalency between the defendant and the victim."
Yet as long as the defendant hasn't been convicted, he and the alleged victim are indeed moral equals in the eyes of the law.