Putting Rape Victims on Trial and the Kobe Bryant case

I don’t have any opinion on Kobe Bryant’s guilt or innocence – and furthermore, I think people who have an opinion at this pre-evidence stage are just demonstrating their own bias. Unfortunately, TalkLeft – a blog I respect – has already decided that Bryant “is the victim… in this case.” In keeping with her prejudgment, Talk left has been linking to articles using the Bryant case as a pretext for attacking rape victims’ rights under the law.

By far the scariest article TalkLeft has linked to is this FindLaw article by defense attorney Jonna Spilbor, who says the central question of the case is “has this good guy been falsely accused?” (Note the presumption, before the evidence has even been heard, that Bryant is a “good guy.” Yes, courts and juries should presume innocence; but Spilbor isn’t a court or a jury, and she should keep her mind open to the possibility that occasionally people accused of rape are, in fact, rapists). The problem, Spilbor thinks, is that women who make false accusations are not punished enough.

Now, to some extent I agree with Spilbor – certainly, a deliberate false accusation, if proved in court, deserves a much harsher sentence than “a fine, ranging from fifty-bucks to $750, and up to six months in the county jail,” which Spilbor says is the current maximum penalty in Colorado. But Spilbor misleads her readers by implying that this is all the punishment a false accuser could receive – she neglects to mention that in Colorado, people found guilty of first-degree perjury can be sent to prison for five years.

After that, Spilbor soars into defense attorney never-neverland:

In addition to imposing serious penalties for false reports, states should also give juries that conclude the accuser has lied, a way to voice that finding – allowing them to render a “Not Credible” verdict along with their “Not Guilty” verdict. Otherwise, the taint of the prosecution will linger.

An acquittal, of course, only means the prosecution has failed to prove its case beyond a reasonable doubt – and the public knows it. So to truly get justice, one who is falsely accused needs more than an acquittal: He needs a finding that the accuser lied.

The current law, however, simply ignores that the false report has happened. It’s not just that it doesn’t provide for a “Not Credible” verdict. It’s also that it gives a false accuser a second bite at the apple: She (or he) can still go on to bring a civil case for damages. Because the standard of proof in a civil suit is lower, it is not precluded by an acquittal.

Perhaps a “Not Credible” verdict, then, ought to bar a future civil suit by the accuser, as well. It only makes sense: A finding of a lie ought to prevent the false accuser from using that lie as the basis for a future case.

In effect, Spilbor’s proposal would mean that at rape trials, the alleged victim would literally be put on trial – and if the jury finds against her, she would lose some of her legal rights, and be publicly branded a liar by the court system. What’s the problem with this? As Avedon Carol has pointed out, this means that the alleged victim would be put on trial – and, if found “not credible,” punished – without the benefit of having her own lawyer or the opportunity to prepare her own defense.

It’s horrifying to think that Spilbor is a lawyer – has she even heard of the Constitution? It’s also horrifying that a defense lawyer – who should be the first to understand the principle “innocent until proved guilty” – is proposing that alleged false accusers be found guilty (er, I mean “not credible”) without their own trial.

Spilbor also doesn’t consider the deterrent effect her proposals would have on genuine rape victims. As it is, rape is possibly the most underreported crime – according to a nationally representative study of rape victims, The National Women’s Study, only 16% of female rape victims ever report their rape to the police. How many fewer would report if they knew that they’d be subject to a “not credible” ruling if the defense lawyers can succeed in smearing them enough?

Finally, why are alleged false accusations of rape such a uniquely high concern? Yes, false accusations of rape can ruin innocent people’s lives; but so can false accusations of drug dealing, false accusations of murder, and so forth. As a defense attorney, Spilbor must realize that lying witnesses (such as a jailhouse snitch – a type of prosecution witness that should be outlawed entirely, in my view) can lead to false convictions in all sorts of felonies, not just rape. All false convictions are a miscarriage of justice; it’s discouraging that the only time the media seems to give a damn, however, is when there’s a chance to paint a stereotype of all rape accusers as liars.

Next post: Rape Shield Laws and the Kobe Bryant Case

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18 Responses to Putting Rape Victims on Trial and the Kobe Bryant case

  1. 1
    ms lauren says:

    i believe the media coverage in this case has a large hand in making bryant’s accuser seem incredible.

    they have made much of the accuser’s previous suicide attempt (she’s mentally unstable! the allegations are false!), bryant’s good guy image (he seems nice! the allegations are false!), what bryant has at stake with the trial (it would be a shame! the allegations are false!), the “viable witnesses” that allegedly heard a conversation in which the accuser bragged about sleeping with kobe (who cares if the witnesses are sport-loving frat boys? the allegations are false!), among other things.

    and then you have the attitude that trish wilson references in her post about warren farrell. he says, “Putting young, beautiful women in front of a heterosexual male is like putting alcohol in front of an alcoholic.”

    that’s right. kobe couldn’t help it. he’s a man and men are driven by instinct! they’re animals!

    [apologies for the overuse of italics - i'm incensed]

  2. 2
    bhw says:

    Great post. I, too, have been disappointed in Talk Left’s coverage of this case. For some reason, to Talk Left, the legal presumption of innocence means that the accused couldn’t possibly have committed the crime, in actual fact. Odd, but that seems to be the argument. I was hoping that Talk Left would offer insight into how to defend a rich, famous client in a case like this, as well as strategies the prosecution might use to prove its case. Not to be.

    I’m a woman, and I always find it difficult to understand when other women — before a case is tried — assume an alleged date rape victim must be lying or just doesn’t understand that she gave up her right to not have sex when she crossed the man’s threshold.

    And I agree with you wholeheartedly that the proposed “not credible” finding against an alleged victim would violate his/her constitutional rights. Unbelievable.

  3. 3
    Robert Brooks says:

    “Finally, why are alleged false accusations of rape such a uniquely high concern? Yes, false accusations of rape can ruin innocent people’s lives; but so can false accusations of drug dealing, false accusations of murder, and so forth.”

    Apples and oranges. People facing accusations other than rape are allowed to confront their accusers in court in accordance with the constitution. People facing charges of rape are disallowed that fundamental right (“Sorry, but the fact that she regularly goes out, gets drunk and has sex with strange men just like you say she did with you is not something we are allowed to bring up in court. The fact that she has a history of filing and later withdrawing charges…well…no, we can’t bring that up either. And the fact that she got so angry when her last boyfriend broke up with her that she filed a false report of abuse/violence/rape/stalking…well…we can’t bring that up either.)

    Rape shield laws may be well intentioned but the net effect is to often deny the accused a right to a fair trial. You may not like it but false accusations do happen (Not saying that it happened in this case…) and the rape shield laws often prevent the defense from…being able to defend itself. The laws are clearly unconstitutional.

  4. 4
    acm says:

    I’m a woman, and I always find it difficult to understand when other women — before a case is tried — assume an alleged date rape victim must be lying or just doesn’t understand that she gave up her right to not have sex when she crossed the man’s threshold.

    is it possible that this is a form of denial? she must have done something wrong; otherwise, this could happen to me! (I might not have control over my likelihood of acquaintance rape!)

    we all look for reassurance that we have more than a trivial hand in our own safety/happiness…

  5. 5
    Shakti says:

    I guess Spillbor doesn’t think her proposal could ever be used against her.

  6. 6
    Jake Squid says:

    Robert,

    You can’t bring up past history of witnesses in other types of cases, either. Unless the witness brings it up themself.

    Or is my understanding completely wrong?

  7. 7
    Prometheus 6 says:

    This girl could easily have been starstruck, and it’s not hard to believe she just wanted the experience of cuddling and playing around with a superstar with no intention of actual penetration-type sex. And as young as she is, it’s not hard to believe things moved faster and further than she expected and she really didn’t know how to stop it…though that sounds a lot like saying “it was too late, he couldn’t stop.”

    It’s not hard to believe both of them honestly feel they are being truthful.

    Net result, insufficient data for now.

  8. 8
    Ampersand says:

    Robert, while you were writing your comment on this post, I was working on the subsequent post, about rape shield laws. In that post, I think I effectively rebut all of your arguments.

  9. 9
    Drew says:

    The fact that she has a history of filing and later withdrawing charges…well…no, we can’t bring that up either. And the fact that she got so angry when her last boyfriend broke up with her that she filed a false report of abuse/violence/rape/stalking…well…we can’t bring that up either.

    From what I’ve read, if the accuser has previously been responsible for false claims, the defense is permitted to raise the issue at trial. I can’t say I’ve kept up with Kobe, but I don’t think that’s an issue here.

  10. 10
    Big Tex says:

    What’s up with this blog’s obsession with rape anyways? It should be named “Alas, A Rape ‘Blog”

  11. 11
    Jake Squid says:

    Big Tex is right. Rape is trivial and meaningless and not even relevant in today’s modern, civilized society. What a waste of time to discuss ways in which to reduce or eliminate such a non-issue.

    Note: This is called “sarcasm”.

  12. 12
    ms lauren says:

    thank god, jake. i thought i would have to get out the hellfire and rain it down on your sorry head.

    tex: i do think this is a relevant and timely topic. it deals with current, personal, ethical, feminist, and legal issues and continues a discussion that would otherwise go unabatedly (and ‘undebatedly’ is so not a word) errant all over the web. blogs, in a sense, are peer-reviewed publications that require fact-checking and debate by peers.

    i happen to enjoy these discussions best. but you’ll quickly find why i’m biased.

  13. 13
    Big Tex says:

    [Insulting comment deleted by Ampersand]

  14. 14
    Ampersand says:

    Big Tex, you’re no longer welcome on this blog. I don’t mind having folks who disagree with me post here; I do mind it when folks come here and rudely insult my friends.

    Please stop posting comments on this blog.

  15. 15
    anonymous says:

    Thank you.

    Too often a perp is pitied, while the rape victim is given a life sentence of tormented memories and a label of “crazy” or “false accuser” with or without a trial.

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  18. 16
    Alex says:

    Finally, why are alleged false accusations of rape such a uniquely high concern? Yes, false accusations of rape can ruin innocent people’s lives; but so can false accusations of drug dealing, false accusations of murder, and so forth.

    I think there is a valid distinction, though it doesn’t justify anything like the degree of suspicion with which most accusations of rape that don’t fit the narrow “violent attack by obviously-criminal stranger” model are usuLly treated. To make a false accusation of murder stick, there has to be an actual corpse involved. Making a false accusation of theft stick generally requires that some stolen property turn up in the accused’s possession. A false accusation of drug dealing is hard to sustain without introducing some actual drugs into evidence (unless you’re in Tulia, Texas, or some similarly bigoted, benighted backwater, anyway).

    On the other hand, in theory it’s possible to convict a man falsely of a rape that never even happened at all, against a woman he never met. In practice, of course, it’s exceedingly difficult to convict even the guilty of rape unless the circumstances fit the culturally approved model and there’s substantial physical evidence, but the fact that a real rape may leave no unambiguous evidence makes the specter of false accusation more alarming for rape than for crimes that generally would involve such evidence had they actually occurred.