Alas, a Blog

• Law professor Michael Dorf has written a good FindLaw article – “Can Kobe Bryant Be Convicted on ‘He Said, She Said’ Evidence Alone?” Among other things, he punctures the myth that rapes are the only cases where juries can decide guilt based on one person’s word versus another’s. He also has a good discussion of rape shield laws.
• I thought this sarcastic comment, left on TalkLeft by Kynn Bartlett of Shock & Awe, was too good not to quote.
  I always forget that there’s a rulebook which says how women should act before and after a rape. Clearly, if she isn’t following the rules, she must not have been raped. After all, everyone KNOWS there’s only one way to deal with something like this. If, say, your coping mechanism isn’t fully in line with (mostly male) expectations, then there was never a rape.

  Too many of the “who needs a trial, Kobe’s obviously innocent” group seem to beleive that if a woman is actually raped, she does nothing with the rest of her life but hide in her room weeping, perhaps taking a break from her weeping now and again in order to browse through information about local nunnaries. There is no “right” way for rape victims to act; nor is rape a crime that happens exclusively to conventional people with no blemishes on their past or their psyche. that an alleged victim once had an overdose, or may even had made a joke about her (alleged) attacker’s private parts, doesn’t prove that she’s a liar.

• The text of many Colorado sexual assault laws can be found here.

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The Kobe Bryant case has provided a context for defense attorneys to attack “rape shield” laws. So defense attorney Barry Tarlow, writing in the LA Times, claims that Colorado’s “stringent” rape shield laws are an “impediment to fair trials.”

But what does Colorado’s rape shield law actually say? First of all, it says that evidence of “the victim’s sexual conduct” is “presumed to be irrelevant.” There are three exceptions to this.

1. “Evidence of the victim’s prior or subsequent sexual conduct with the” defendant is admissible.
2. Evidence that someone other than the defendant in fact committed the act the defendant is accused of. (For instance, if the accuser says “Bob raped me and got me pregnant,” and the defense has evidence that in fact Jim got her pregnant, that’s admissible).
3. Any other evidence whatsoever is admissible, as long as the defense attorney can convince a judge that the evidence is relevant.

So this is the big complaint about rape shield laws – defense attorneys are limited to presenting evidence that’s actually relevant to the case. This means that if the victim has (for example) a provable pattern of making false accusations, that would virtually certainly be admissible evidence. On the other hand, the “nuts and sluts” defense – an attempt to convince a jury that because a woman has willingly had sex with people in the past, therefore she must have agreed to have sex with the defendant, and anyway she’s probably crazy because look, she got drunk at a party once and goes to therapy once a week – is a great deal less likely to be acceptable.

Is this really such a loss to fairness and justice?

Tarlow opens his op-ed by longing for the good old days when “those accused of rape or sexual assault could defend against the charges on the theory that people behave in conformity with their character.” What is he referring to by “character”?

He’s not referring to defenses based on the idea that “Joe Accused is a man of good character, who would never do such a thing.” Such defenses are now as legal as they ever were – Joe Accused is free to call as many witnesses to his good character as he wants to. (In fact, if my understanding is correct, the prosecution isn’t even allowed to bring up the issue of Joe’s character unless Joe himself chooses to bring it up in his own defense).

So by “people,” Tarlow can’t be referring to defendants – defendants are allowed to defend themselves based on their character. So when Tarlow talks about “people”‘s character, what he means is that defendants should be able to base their defense on the character of the alleged victim; and that rape shield laws prevent defendants from doing this.

But in what way could “the theory that [alleged victims] act in conformity with their character” be relevant?

1. Tarlow could mean that someone who has a provable pattern of making false accusations has demonstrated a character flaw, which should be enough to provide reasonable doubt in the defendant’s favor. I’d agree with that. But that can’t be what Tarlow is referring to, because Colorado’s rape shield law wouldn’t prevent such a defense – as law professor Michael Dorf writes, “Colorado law permits the defendant to show that the alleged victim has a history of bringing false rape accusations against men with whom she had consensual sex.”
2. Tarlow could be referring to the theory that if a woman is promiscuous, she would probably lie about being raped, or is incapable of being raped. Put another way, this is the theory that because she’s willingly had sex in the past, in the case under issue she “acted in conformity with her character” and willingly had sex again. (Sounds ridiculous – but before rape shield laws, this “theory” got many an accused rapist off the hook.)

   The problem is, this theory is demonstrably false. That a woman has slept with two men or twenty-two men in the past does not prove that she consented to have sex with Joe Accused, or even that she’d be likely to consent to sex with Joe Accused. And needless to say, even if some puritanical juries might be convinced that a promiscuous women is incapable of being raped, that’s not the case under the law (or any legitimate definition of rape).

Tarlow goes on to argue that nowadays, “in cases of sexual assault, it is the accuser, not the accused, who is presumed innocent.” But this is nonsense. First of all, alleged victims of rape are neither presumed innocent or guilty – much as Tarlow and other defense attorneys seemingly regret this fact, the victim is not on trial. Secondly, and more importantly, nothing in the rape shield law reverses the presumption of innocence. Nothing in the rape shield law relieves the prosecution of their burden of proving guilt beyond a reasonable doubt.

Tarlow continues:

Mr. Tarlow is apparently unaware that Kobe Bryant is represented by one of the best criminal defense lawyers in Colorado. He will have a more than fair chance to present himself in an angelic light – that’s what a defense is for. He’s also have a fair chance to confront his accuser (or, more literally, to have his attorney confront her), and to do his best to make her look like a jerk, a liar, or a wacko while doing so. (Unlike Bryant, the alleged victim won’t have her own attorney there to defend her interests). The only real limitation Bryant’s attorney faces due to rape shield laws is that she can’t drag in irrelevant evidence that Bryant’s accuser has voluntarily had sex with men other than Bryant in the past.

Now, Tarlow does make one legitimate-sounding point; he argues that it’s unfair that the prosecution can bring up Bryant’s sexual history, but the defense can’t do the same for accusers.

Frankly, I doubt that this is really Tarlow’s concern – after all, hypothetical evidence that Bryant has slept around a lot, if brought up in court, would embarrass Bryant personally but would hardly hurt his case legally. (On the contrary, faced with hypothetical evidence that Bryant is slutty, a jury would be likely to think “Why would he force someone when he has so many willing partners?”)

But in any case, Tarlow forgets to mention that there are already many rules preventing prosecutors from bringing up irrelevant or prejudicial evidence if its not related to the case. (And that’s good, of course). If Mr. Tarlow thinks the current rules don’t protect defendants enough from irrelevant or prejudicial evidence, then his logical course of action would be to advocate for improved rules protecting defendants. To argue instead, as he does, that defendants should instead be given an extra right to run a “she’s slept around, therefore she wasn’t raped” defense is both illogical and unconscionable.

Mr. Tarlow does say one thing I agree with – “The legitimacy of a system of justice depends on the perception that it is fair and evenhanded.” If Mr. Tarlow’s proposed return to the bad old days becomes law, then once again rape victims will be advised “don’t press charges. If you do, you’ll be the one on trial, not your rapist.” The system Mr. Tarlow longs for, in which defense attorneys were free to attack alleged rape victims by convincing the jury that they were too slutty to be raped, is rightly remembered by most people as an entirely unfair and illegitimate system. I dearly hope we don’t go back.

(Link via TalkLeft.)

(Updated to add the quote from Michael Dorf)..

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 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.