How much should we know about the sex life of Kobe Bryant’s accuser?

Rape shield laws were created to protect victims from having their sex lives used against them in court. But where's the line between protections for victims and the constitutional rights of defendants?

Topics: Violence Against Women,

How much should we know about the sex life of Kobe Bryant's accuser?

On Wednesday, the 19-year-old woman who accuses basketball star Kobe Bryant of raping her took the stand at a pretrial hearing in the Eagle County, Colo., courthouse. Apart from the usual explosive mix of sex and celebrity, the case has also generated heated debate about the rape shield laws that protect the accuser’s sexual history. The purpose of the closed-door hearing was to determine what, if any, parts of this history could be admitted into evidence at the trial.

The tactics of Bryant’s defense team, which has demanded access to the young woman’s mental health records and suggested that she had sex with three different partners in the days before and after the alleged rape, have been roundly deplored by feminists and victims’ rights advocates. In New York Newsday, writer Lorraine Dusky has slammed defense attorney Pamela Mackey for “amoral antics.” Wendy Murphy, a former sex crimes prosecutor who teaches at the New England School of Law and appears regularly on television, charges that the defense has exploited misogynistic myths about rape accusers — “that women are mentally ill, and vindictive, and lie for sport.”

But the reality is much more complicated. The Bryant case is only the latest example of the conflict between protections for rape victims and the constitutional rights of defendants — and a reminder of how excruciatingly difficult it can be to find a fair balance between the two.

There is no question that until the feminist rape law reform movement came along in the 1970s, the treatment of women in rape cases was often shameful. Just 30 years ago, evidence of the accuser’s “unchaste character” (extramarital relationships, the use of birth control, the habit of going to bars alone) could be introduced in a trial with the explicit goal of impeaching her testimony. Jurors were specifically instructed to consider such evidence in assessing the woman’s credibility and the probability of consent — on the charming theory that if she was a slut, she was also likely to be a liar and probably wouldn’t say no to any man.

By 1980, 46 states had instituted rape shield laws making the accuser’s prior sexual activity generally inadmissible in a sexual assault trial; today, such laws are virtually universal. However, they allow for certain exceptions — such as the woman’s past relationship with the defendant, or evidence that a sexually transmitted disease alleged to have resulted from the rape may have been due to consensual sex with someone else. In many states, other evidence may be admitted at the judge’s discretion “in the interests of justice,” though the burden is generally on the defense to show that its relevance outweighs the negative effects on the accuser. Likewise, the courts can sometimes admit into evidence the accuser’s medical history, including mental illness and drug abuse (which is protected by medical confidentiality laws rather than rape shield statutes).

In high-profile cases such as Kobe Bryant’s, the use of compromising personal information about the alleged victim invariably causes an outcry about “nuts and sluts” defense tactics (a term coined some years ago by legal scholar Susan Estrich). Victims’ advocates warn that rape shield laws are being eviscerated and that women will be discouraged from reporting sexual assaults. These are legitimate concerns, to be sure. Yet in some of these controversial cases, it seems clear that excluding the evidence in question would have been egregiously unfair to the defendant.

In 1991, a Maryland real estate agent named Gary Hart (no relation to the politician) was accused of raping a waitress he had been dating. The woman claimed that their relationship had been platonic, and that Hart had attacked her while she was staying overnight at his apartment. Hart claimed that they had been sexually involved, and that the woman had gotten angry because he refused to take her along on a trip. The defense was able to bring in evidence that Hart’s accuser had a history of emotional instability, had made several false claims of sexual assault to psychiatrists and police, and had on several occasions reacted to romantic rejection with outbursts of violent rage. Hart was acquitted.

The trial received extensive local coverage, and the use of the alleged victim’s troubled personal history in the courtroom was widely treated as if it were a gratuitous smear. A letter published in the Baltimore Sun asserted that even if the woman had not been raped by Hart, she suffered “a brutal form of abuse … inside the courtroom.” This curious logic ignores the fact that if Hart did not commit rape, his accuser was guilty of a pretty brutal form of abuse toward him — and that her reliability as a witness was key to the case.

In many other cases, the overzealous application of rape shield laws has resulted in miscarriages of justice. In a much-publicized 1998 case in New York, Columbia University graduate student Oliver Jovanovic was convicted of kidnapping and sexually abusing a Barnard College student whom he had met on the Internet. While Jovanovic claimed that the encounter involved consensual bondage, the trial judge ruled that the defense could not use e-mail messages in which the young woman had told him about her interest in sadomasochism and her S/M relationship with another man. Jovanovic was sentenced to 15 years in prison. His conviction was eventually overturned by an appellate court that held he was denied the chance to present an adequate defense — a ruling predictably deplored by feminist activists as a blow to victims.

And then there are the more obscure cases:

  • 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 has consistently claimed; 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.
  • At the trial, the defense attorney questioned the woman about the fact that the morning after the alleged rape, she did not say anything about it to clinic staff members. The woman claimed that she was too embarrassed to talk about it; the prosecutor picked up on this point in his summation, scoffing that the defense expected a rape victim to “just walk up to one of the staff” and discuss “those most intimate details.” But there was something the jury didn’t know: The day before, she had discussed equally “intimate details” — an alleged earlier rape and childhood sexual abuse — with one of the clinic counselors. The jurors never heard the counselor testify about this and never saw his notes, which contained the comment that “client … has a lot of other issues around incest/rape,” because all information about the woman’s sexual history had been ruled inadmissible.

  • In 1993, Charles Steadman, an 18-year-old Wisconsin resident, was tried on charges of raping his 22-year-old foster sister. He claimed that the sex was consensual, and there was no evidence of force or struggle. The jury never found out that when the woman filed the complaint against Steadman, she herself was facing charges of sex with minors. (She was eventually convicted and received probation with mandatory psychiatric treatment.) The defense wanted to argue, quite reasonably, that this could have given her a motive to lie — particularly since she had earlier had a sexual relationship with Steadman when he was a minor. She might have thought that being a victim might improve her legal prospects as a defendant; she might have worried that if her encounter with Steadman became known, it would get her into more trouble with the law and with her family.
  • None of those possible motives could be introduced at Steadman’s trial: The alleged victim’s legal problems were related to her past sexual activities and hence inadmissible. Steadman was convicted and given an eight-year prison sentence.

    Like many such cases, the Kobe Bryant case is primarily a “he said, she said” matter, with ambiguous corroborating evidence that county judge Frederick Gannett characterized as weak even as he sent the case to trial. The woman’s sexual activities prior to the alleged rape may well be relevant to the physical evidence; if, as the defense has hinted, she engaged in consensual sex shortly after her encounter with Bryant, it may well be relevant to the question of whether she was raped; if she is mentally unstable, it may well be relevant to her credibility.

    These are wrenching questions. Obviously, a woman with a history of mental illness or substance abuse could still be a rape victim. Obviously, the prospect of having embarrassing personal details exposed in court (let alone paraded in the media) may discourage victims from coming forward. Just as obviously, suppressing relevant evidence may result in sending an innocent person to jail. And if it’s frightening to put oneself in the place of a sexual assault victim who finds herself on trial in the courtroom, it is no less terrifying to imagine that you — or your husband or brother or son — could be accused of rape and denied access to evidence that could exonerate him.

    For some feminists, the dogma that “women never lie” means that there is, for all intents and purposes, no presumption of innocence for the defendant. 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, attorney Gloria Allred decried “the notion that there’s some sort of moral equivalency between the defendant and the victim” — forgetting that as long as the defendant hasn’t been convicted, he and his accuser are indeed moral equals in the eyes of the law. Wendy Murphy has blasted Kobe Bryant’s attorneys for feeding uncorroborated rumors about the alleged victim to the media maw. Yet, appearing on Fox News, she made the claim, highly prejudicial to Bryant and so far untested in a court of law, that the woman “suffered pretty terrible injuries” the likes of which she had not seen despite having prosecuted “hundreds of sex crimes cases.”

    In a law review article published in 1977, when rape shield laws were being adopted across the country, Columbia University law professor Vivian Berger, generally a supporter of feminist law reforms, cautioned against “sacrificing legitimate rights of the accused person on the altar of Women’s Liberation.” Twenty-seven years later, we are still grappling with this issue, and Berger’s warning remains as timely as ever.

    Cathy Young is the author of "Ceasefire! Why Women and Men Must Join Forces to Achieve True Equality."

    More Related Stories

    Featured Slide Shows

    • Share on Twitter
    • Share on Facebook
    • 1 of 11
    • Close
    • Fullscreen
    • Thumbnails

      Ten spectacular graphic novels from 2014

      Beautiful Darkness by Fabien Vehlmann & Kerascoët
      Kerascoët's lovely, delicate pen-and-watercolor art -- all intricate botanicals, big eyes and flowing hair -- gives this fairy story a deceptively pretty finish. You find out quickly, however, that these are the heartless and heedless fairies of folk legend, not the sentimental sprites beloved by the Victorians and Disney fans. A host of tiny hominid creatures must learn to survive in the forest after fleeing their former home -- a little girl who lies dead in the woods. The main character, Aurora, tries to organize the group into a community, but most of her cohort is too capricious, lazy and selfish to participate for long. There's no real moral to this story, which is refreshing in itself, beyond the perpetual lessons that life is hard and you have to be careful whom you trust. Never has ugly truth been given a prettier face.

      Ten spectacular graphic novels from 2014

      Climate Changed: A Personal Journey Through the Science by Philippe Squarzoni
      Squarzoni is a French cartoonist who makes nonfiction graphic novels about contemporary issues and politics. While finishing up a book about France under Jacques Chirac, he realized that when it came to environmental policy, he didn't know what he was talking about. "Climate Changed" is the result of his efforts to understand what has been happening to the planet, a striking combination of memoir and data that ruminates on a notoriously elusive, difficult and even imponderable subject. Panels of talking heads dispensing information (or Squarzoni discussing the issues with his partner) are juxtaposed with detailed and meticulous yet lyrical scenes from the author's childhood, the countryside where he takes a holiday and a visit to New York. He uses his own unreachable past as a way to grasp the imminent transformation of the Earth. The result is both enlightening and unexpectedly moving.

      Ten spectacular graphic novels from 2014

      Here by Richard McGuire
      A six-page version of this innovative work by a regular contributor to the New Yorker first appeared in RAW magazine 25 years ago. Each two-page spread depicts a single place, sometimes occupied by a corner of a room, over the course of 4 billion years. The oldest image is a blur of pink and purple gases; others depict hazmat-suited explorers from 300 years in the future. Inset images show the changing decor and inhabitants of the house throughout its existence: family photos, quarrels, kids in Halloween costumes, a woman reading a book, a cat walking across the floor. The cumulative effect is serene and ravishing, an intimation of the immensity of time and the wonder embodied in the humblest things.

      Ten spectacular graphic novels from 2014

      Kill My Mother by Jules Feiffer
      The legendary Pulitzer Prize-winning cartoonist delivers his debut graphic novel at 85, a deliriously over-the-top blend of classic movie noir and melodrama that roams from chiaroscuro Bay City to Hollywood to a USO gig in the Pacific theater of World War II. There's a burnt-out drunk of a private eye, but the story is soon commandeered by a multigenerational collection of ferocious women, including a mysterious chanteuse who never speaks, a radio comedy writer who makes a childhood friend the butt of a hit series and a ruthless dame intent on making her whiny coward of a husband into a star. There are disguises, musical numbers and plenty of gunfights, but the drawing is the main attraction. Nobody convey's bodies in motion more thrillingly than Feiffer, whether they're dancing, running or duking it out. The kid has promise.

      Ten spectacular graphic novels from 2014

      The Motherless Oven by Rob Davis
      This is a weird one, but in the nervy surreal way that word-playful novels like "A Clockwork Orange" or "Ulysses" are weird. The main character, a teenage schoolboy named Scarper Lee, lives in a world where it rains knives and people make their own parents, contraptions that can be anything from a tiny figurine stashable in a pocket to biomorphic boiler-like entities that seem to have escaped from Dr. Seuss' nightmares. Their homes are crammed with gadgets they call gods and instead of TV they watch a hulu-hoop-size wheel of repeating images that changes with the day of the week. They also know their own "death day," and Scarper's is coming up fast. Maybe that's why he runs off with the new girl at school, a real troublemaker, and the obscurely dysfunctional Castro, whose mother is a cageful of talking parakeets. A solid towline of teenage angst holds this manically inventive vision together, and proves that some graphic novels can rival the text-only kind at their own game.

      Ten spectacular graphic novels from 2014

      NOBROW 9: It's Oh So Quiet
      For each issue, the anthology magazine put out by this adventurous U.K.-based publisher of independent graphic design, illustration and comics gives 45 artists a four-color palette and a theme. In the ninth issue, the theme is silence, and the results are magnificent and full of surprises. The comics, each told in images only, range from atmospheric to trippy to jokey to melancholy to epic to creepy. But the two-page illustrations are even more powerful, even if it's not always easy to see how they pertain to the overall concept of silence. Well, except perhaps for the fact that so many of them left me utterly dumbstruck with visual delight.

      Ten spectacular graphic novels from 2014

      Over Easy by Mimi Pond
      When Pond was a broke art student in the 1970s, she took a job at a neighborhood breakfast spot in Oakland, a place with good food, splendid coffee and an endlessly entertaining crew of short-order cooks, waitresses, dishwashers and regular customers. This graphic memoir, influenced by the work of Pond's friend, Alison Bechdel, captures the funky ethos of the time, when hippies, punks and disco aficionados mingled in a Bay Area at the height of its eccentricity. The staff of the Imperial Cafe were forever swapping wisecracks and hopping in and out of each other's beds, which makes them more or less like every restaurant team in history. There's an intoxicating esprit de corps to a well-run everyday joint like the Imperial Cafe, and never has the delight in being part of it been more winningly portrayed.

      Ten spectacular graphic novels from 2014

      The Shadow Hero by Gene Luen Yang and Sonny Liew
      You don't have to be a superhero fan to be utterly charmed by Yang and Liew's revival of a little-known character created in the 1940s by the cartoonist Chu Hing. This version of the Green Turtle, however, is rich in characterization, comedy and luscious period detail from the Chinatown of "San Incendio" (a ringer for San Francisco). Hank, son of a mild-mannered grocer, would like to follow in his father's footsteps, but his restless mother (the book's best character and drawn with masterful nuance by Liew) has other ideas after her thrilling encounter with a superhero. Yang's story effortlessly folds pathos into humor without stooping to either slapstick or cheap "darkness." This is that rare tribute that far surpasses the thing it celebrates.

      Ten spectacular graphic novels from 2014

      Shoplifter by Michael Cho
      Corinna Park, former English major, works, unhappily, in a Toronto advertising agency. When the dissatisfaction of the past five years begins to oppress her, she lets off steam by pilfering magazines from a local convenience store. Cho's moody character study is as much about city life as it is about Corinna. He depicts her falling asleep in front of the TV in her condo, brooding on the subway, roaming the crowded streets after a budding romance goes awry. Like a great short story, this is a simple tale of a young woman figuring out how to get her life back, but if feels as if it contains so much of contemporary existence -- its comforts, its loneliness, its self-deceptions -- suspended in wintery amber.

      Ten spectacular graphic novels from 2014

      Through the Woods by Emily Carroll
      This collection of archetypal horror, fairy and ghost stories, all about young girls, comes lushly decked in Carroll's inky black, snowy white and blood-scarlet art. A young bride hears her predecessor's bones singing from under the floorboards, two friends make the mistake of pretending to summon the spirits of the dead, a family of orphaned siblings disappears one by one into the winter nights. Carroll's color-saturated images can be jagged, ornate and gruesome, but she also knows how to chill with absence, shadows and a single staring eye. Literary readers who cherish the work of Kelly Link or the late Angela Carter's collection, "The Bloody Chamber," will adore the violent beauty on these pages.

    • Recent Slide Shows



    Comment Preview

    Your name will appear as username ( settings | log out )

    You may use these HTML tags and attributes: <a href=""> <b> <em> <strong> <i> <blockquote>