Rape Shield Laws and Equal Protection

Posted on October 15th, 2004 in Commentary by EngineerBoy

The current Kobe Bryant case has highlighted the rape shield laws of Colorado, which protect the identity and sexual history of the accuser in rape trials. Rape shield laws are enacted to protect women from the embarrassment and degradation they might feel if their identity and sexual history, as well as the specifics of their rape charges, were made public. The goal is to make it easier and thus more likely for women to come forward when they have been victimized in this way. In the past, the public nature of our criminal justice system sometimes drove women to decide not to report incidents of sexual assault.

I think these laws have had their intended effect, for the most part, but I feel that they are unfair to the accused, in many instances. For example, in the Kobe Bryant case, my understanding of the facts is that Kobe checked into a hotel, and then invited one of the staff members, a 19 year old young women, to give him a private tour of the facilities. She agreed, and provided the tour. According to the accuser’s own testimony, during the tour Kobe flirted openly with her, and she was flattered by the attention. He then invited her up to her room, and she also agreed, and went willingly alone with him to his room. Up to this point, the facts are clear, undisputed, and publicly known.

Behind Closed Doors

After this point, however, the two were behind closed doors and nobody but them really knows what happened. She says that he raped her, and he says that they had consensual sex. One of them is lying, and either way it is a tragedy. The evidence does show that they had sex, but does not clearly show anything else. She had some minor injuries, but nothing that couldn’t also have resulted simply from an energetic tryst (or from her having other encounters before or after the one with Kobe).

In this particular instance, where it is simply he-said/she-said, I do not agree with the rape shield laws. There is no evidence of a crime other than the young woman’s accusations. Kobe has no history of any behaviors of this kind. Also, there is evidence that the young woman had sexual relations very soon before and very soon after her encounter with Kobe. The evidence was strong enough that the judge permitted it into evidence, even though in most cases a victim’s sexual history is inadmissible.

And now, as the criminal charges seem to be slipping away (editors note: actually have been dropped due to the young woman’s refusal to testify), the young woman has filed a civil suit for monetary damages. In civil cases the burden of proof is lower, as evidenced in the O.J. Simpson saga (where he was acquitted on criminal charges, but lost the civil case). In the O.J. case there were mountains of evidence against him, he had a history of physically abusing the victim, and many (including myself) are convinced that he did it. However, his lawyers managed to win the case, so officially he is innocent of criminal charges. The family of Nicole Brown Simpson then took O.J. to civil court and won a large monetary judgment, and also a small measure of vindication. In the O.J. case, I understand and applaud the use of the civil courts after the failure of the criminal justice system.

But the Kobe Bryant case is completely different. There is no mountain of evidence that he’s wiggling out of via lawyerly tricks. There’s not even convincing evidence that a crime has been committed. There is nothing but the statements of the accuser and some “evidence” that may or may not be relevant. And the accuser is not even waiting for the criminal case to conclude before starting her civil case (for money).

Remember the Constitution?

Obviously, there is no way that I (nor anyone other than Kobe and his accuser) can know what happened in that hotel room. In my opinion, rape shield laws should not be used in cases such as these, as all it takes is the word of an anonymous accuser to forever taint the standing and reputation of the accused. Rape is the only crime of which I am aware where the accuser can remain anonymous. I understand that rape is different from other crimes, and even though the Constitution-lover in me is appalled, intellectually, by the thought of secretive court proceedings, I see that these laws can serve the greater good, if used properly.

Reality Check

In my opinion, rape shield laws should require some sufficiency of evidence at a preliminary hearing in order to be invoked. During the hearing both parties should remain anonymous and the prosecution should have to show:

  • Proof beyond a reasonable doubt that a crime has been committed.
  • Sufficient evidence that the accused was the perpetrator.

If the prosecution can show the above, then I am tolerant of rape shield laws, as they help to address the horrifying aftermath of a despicable crime. However, in the Kobe Bryant case, it’s clear that while Kobe was certainly involved in the incident, there appears to be little or no evidence that an actual crime has taken place. And in this case, I feel that the accuser should have to abandon her claim to anonymity and publicly stand behind her accusations, particularly if the action is in civil courts in pursuit of monetary damages.

Harsh Punishments

All that being said, I am also very much in favor of the harshest possible penalties for sexual assault and rape convictions. I am not a criminal, but I can visualize dire circumstances where I might rob, steal, hurt, or even kill. These are highly unlikely scenarios and would depend on extreme situations, such as the collapse of civilization, but I can see myself stealing or killing to keep my family alive.

However, there are no situations – extreme, hypothetical, or otherwise – where sexual assault can be justified, or the character of the perpetrator defended. There can be no extenuating or mitigating circumstances. Sexual assault is heinous and evil, and demonstrates something irretrievably wrong with the perpetrator. Most rapists assault multiple victims, and continue their evil ways even after incarceration. There is no treatment or rehabilitation that can “cure” someone that is twisted and evil enough to commit a crime like this. I would support and applaud the treatment of rape as a capital crime, with life imprisonment or even the death penalty as the appropriate responses.

Fair Trials

However, the trials must be fair. Yes, rape shield laws create a situation where more rapists will be taken off the streets. However, it also creates a situation where more falsely accused innocent people will lose their reputations, or be wrongfully incarcerated, due to false charges. The American justice system is built on the foundation that we err on the side of releasing the guilty and strive to never punish the innocent. There are many documented cases where women have lied about the identify of their rapists, or the nature of the events.

For example, Linda Fairstein, head of the New York County District Attorney’s Sex Crimes Unit, says “there are about 4,000 reports of rape each year in Manhattan. Of these, about half simply did not happen.” Also, the FBI’s official statistics say that 9% of all rape accusations are “unfounded”. This only includes cases where the accuser recants or the evidence directly contradicts her story, and does not include cases dismissed for lack of evidence. The most common reasons given for the false accusations are spite or revenge, or to provide an alibi for questionable behavior or a surprise or unwanted pregnancy.

These are not trivial numbers. The zeal to protect victims and convict rapists should be balanced against the fact that people will always attempt to pervert the justice system for their own reasons. Given these facts, I think that rape shield laws should be tempered with the reality checks suggested above. This will provide equal protection under the law to all of us.

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