Kobe Beef

Issues of fairness raised on rape "shield"

The charges of sexual assault brought against Los Angeles Lakers guard Kobe Bryant have reignited the debate about the laws and policies that have evolved in the past three decades to protect the privacy of complainants in rape cases—from the practice of withholding the name of the alleged victim in news stories to the legal exclusion of evidence related to her (or his) sexual past.

At first glance, such measures seem fair and humane. Why shouldn't a rape victim be able to seek justice and safeguard her privacy? Why should defense attorneys be allowed to drag a victim through the mud by painting her as a slut who was "asking for it"?

Yet these protections have come under increased scrutiny. Some say that withholding the name of the accuser conveys the message that she is in fact a victim and that the accused is guilty. Even if the man is acquitted or the charges are dismissed, the stigma may linger.

Protecting the name of the accuser may also create an uneven playing field. When a man is charged with a sex crime, other women may come forward to claim that he assaulted them in the past. Under some circumstances, such claims are admissible in court; even if they are excluded, the publicity is likely to compound the damage to the man's reputation. Meanwhile, people who have information that could call the accuser's credibility into question—for instance, that she has previously made false charges of rape—may never even find out that they know the person involved in the case.

Shielding the accuser's identity is not a matter of law but of media policy (though the judge presiding over the Bryant case has given it a legal imprimatur by threatening legal sanctions against media outlets that publicize the accuser's name or image). But questions are also being raised about shield laws that make an alleged victim's sexual history inadmissible in a rape trial.

The last notorious case to raise these issues was that of sportscaster Marv Albert, who was accused by his longtime friend and lover Vanessa Perhach of oral sodomy and assault. At the 1997 trial, Albert's attorneys wanted to bring up Perhach's alleged conduct with other men, particularly men who ended relationships with her—as Albert, who was getting married, was about to do. She had reportedly harassed and threatened a former boyfriend's family, and may have made false accusations of crimes as a form of revenge. A former lover was also willing to testify that biting, on which the assault charge against Albert was based, was a part of her sexual repertoire.

All this testimony, however, was barred from the trial—while a woman who came forward to claim that Albert had sexually assaulted her several years earlier was allowed to take the stand. With the defense's hands tied, Albert pleaded guilty to misdemeanor assault.

In another high-publicity case, Oliver Jovanovic, a graduate student at Columbia University, was convicted in 1998 of sexually assaulting a female student he had met on the Internet. The young woman claimed that Jovanovic tied her up and sexually abused her. The defense argument that the two engaged in consensual bondage was crippled by the trial judge's decision to exclude portions of the e-mail correspondence in which the young woman discussed her interest in, and past experiences with, sadomasochism. The Appellate Division of the New York State Supreme Court subsequently reversed the conviction on the grounds that the shield law was improperly used to exclude relevant evidence.

When rape shield laws were first enacted, they were a response to truly abusive practices. Just 30 years ago, jurors in rape cases were often formally instructed to consider evidence of "unchaste character" (such as going to bars alone or using birth control) as detracting from the complainant's credibility. But in recent years, even some legal experts who are highly sympathetic to the interests of women—such as Columbia University law professor George Fletcher—have expressed concern that the pendulum may have swung too far against the interests of the accused.

Many feminist groups fiercely resist any weakening of rape shield laws, including a recent New Jersey Supreme Court ruling which allows evidence of past sexual contact between the accuser and the accused to be used at trial. Yet feminism should be about equal justice, not just the advantage of women. Women who come forward with charges of rape should not be treated as liars or sluts, but neither should they be given automatic credibility. Being sexually assaulted is a terrible ordeal—but so is being falsely accused.