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.
- “Evidence of the victim’s prior or subsequent sexual conduct with the” defendant is admissible.
- 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).
- 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?
- 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.”
- 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)..
“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.”
Not sure thats enough. If the alleged victim has a history of making other, serious false accusation (say, of assualt, or theft, or stalking) allowing in false rape accusations would not do anything. Lying about being beat up is as a serious mark agaisnt a person’s credibility as lying about being raped.
Whoops! I mis-wrote. Excuse me while I make a correction.
Wait, no, I didn’t mis-write. Never mind.
Anyhow, the example you name is totally irrelevant to rape shield laws – because it has nothing to do with past sexual behavior, and rape shield laws only address the admissability of past sexual behavior.
I think Tarlow’s problem is that he seems to have forgotten that this case is not Alleged Rape Victim vs. Kobe Bryant. It’s THE STATE OF COLORADO vs. Kobe Bryant. He seems to believe that justice is a game, and the object of the game is for the defense to beat the victim. In fact, a trial is only a game for the attorneys, and the goal is for the defense to avoid being beaten by the prosecution.
I can’t blame him for wanting to win. I’ve considered becoming a criminal defense attorney myself because I think it would be fun to get paid to outsmart DAs all day. But it’s more than a little sick to be that obtuse towards the pain and suffering of the majority of rape victims who actually are telling the truth.
“because it has nothing to do with past sexual behavior, and rape shield laws only address the admissability of past sexual behavior.”
Okay. I read your post as stating the laws were a blanket prohibition agaisnt any prior bad activity. My fault.
I’m going to borrow liberally from a recent http://ludicrosity.com/ article I just wrote on this issue:
What no one seems to be talking about is the fact that by portraying Kobe’s alleged victim, essentially, as a “slut,” the defense team is damaging a key argument in their case. It is true that the “vaginal tearing” of the alleged victim could very well have occurred during consentual sex, not just from rape. However, when it’s from consentual activity, it’s most often when a woman hasn’t had sexual relations in some time, and would be much LESS common on someone who had just had sex “with three men in three days.” If the two most common causes of this injury are non-consentual sex, or consentual sex after a long period of NO sex, and the defense team eliminates this latter cause, then the former cause gains credibility. Therefore, if the woman is in fact promiscuous, the defense can not as convincingly claim the “vaginal tearing” was a result of consentual activity.
Either the defense team does not realize this little paradox, or, more likely, they feel that making the alleged victim out to be “loose” damages her reputation enough to outweigh that, medically, it’d be better for their case if she was, er, “tight.” Kobe’s hope here is that people will think “oh, well, that girl’s a troubled slut who’s been having sex with different guys all week, and he’s this gorgeous popular basketball star who could have anyone he wanted, so it must have been consentual, which makes her a liar, too.” But this is why we have rape shield laws, to prevent juries from being swayed by such thoughts. Why isn’t a person’s prior sexual promiscuity relevant? Well, imagine if a guy breaks into a woman’s house to steal her stereo, and is caught. Do you think it would be relevant if the defense proved that the woman had had several invited visitors into her house in the past week? “But ladies and gentleman of the jury, she lets people into her house all the time. Why should we think this guy wasn’t invited in, too? I mean, she’s even had parties for God’s sake. She’s practically a socialite!” See what I mean?
I found the following comment on the Kobe Bryant case on another board, and it just sums up the side that claims they’re being terribly fair. I counted ten qualifications in this thing, and nothing but speculation. She’s totally serious. She thinks she’s being impartial, probably because this wild theory serves her purpose.
“Let’s be impartial for at least one moment. I am not saying it didn’t happen, however, if she allegedly went out of her way to put him in a room away from body guards, etc., whose to say that she and Kobe did not have some pre-arranged meeting time and place? Let’s just say hypothetically they agreed from the onset that they would meet up at a certain time, if that were the case and we suppose a little further down the road, she could have told the bellhop about a scheme she hatched to snare Kobe, prior to the alleged rape and he decided to go along with her. Again this is a purely hypothetical scenario although very plausible.”
Well, I suppose if by “plausible” she means “completely unsupported by any facual information of any kind” or “having emerged freshly from the ass of a fan in denial” then maybe…
Someone used the following as an example:
Why isn’t a person’s prior sexual promiscuity relevant? Well, imagine if a guy breaks into a woman’s house to steal her stereo, and is caught. Do you think it would be relevant if the defense proved that the woman had had several invited visitors into her house in the past week? “But ladies and gentleman of the jury, she lets people into her house all the time. Why should we think this guy wasn’t invited in, too? I mean, she’s even had parties for God’s sake. She’s practically a socialite!” See what I mean?
No I don’t. A more accurate analogy would be if she constantly let people in her house and gave them all stereos. Then at a later date she accused a famous person of stealing her stereo. I think it would be very relevant to know her past history as it related to how she handled stereos. This in no way would prove that he didn’t steal the stereo. But it would be relevant information.
Here’s an analogy: if you were involved in 3 other car accidents, that doesn’t mean that you are at fault in this accident. The issue is what happened in the Bryant case. But, the defense attorney’s job is to try to get that old behavior into evidence because some jurors respond to that sort of thing.
Adam Studnicki
Injury Lawyer
Studnicki, Jaffe & Woods, PLLC
http://www.sjwlawyers.com
That sort of tactic backfires with some jurors as well. One of the defense attorneys for the Big Dan’s case once said he wouldn’t attack the accuser’s charecter or past if he could do it again, since it didn’t sit well with the jury.
Sexual assault is a predatory crime. Whether the assailant is a smelly street thug, a lawyer, a doctor, the guy next door or a super star they’re all the same. They seek out their prey based on vulnerability. They are no different than big cats or wolves out in the bush. When a predator (man or beast) is seeking prey, they instinctively select the weakest or most venerable of the herd, also known as the path of least resistance.
In the case of sexual assault you will most certainly find that the majority of victims are in some way weak or vulnerable. Maybe it’s depression, maybe it’s booze, maybe the victim suffers physical or mental limitations, does any of the above make the victim less of a human? Does depression or promiscuity make it OK for a person to have their life and soul ripped from their being? If so, our country is no different than the regime we have declared war upon.
I’ve seen the reprocussions of victims of crime reporting the crime to police. One woman was attacked in her sleep by three friends of the defendant. They gang raped her and cut her head to toe with razor blades. She never reported the second attack. Another 19 year old was picked up by “friends” and driven around all afternoon beaten beyond recognition. The day ended with her throat cut and her body dumped in another town. Yes, my fellow Americans we need to help these women –
There are some serious problems in her story. She claimed Kobe Bryant asked for a tour in a “secretive manner” despite the fact his bodyguards were in the same room. How can you have a secret, when you’re visiting PUBLIC areas of the hotel where tenants and employees might see you, and the alleged victim claims they ran into the bellman on the balcony? She also claims Kobe wanted to see the tattoo on her ankle. He doesn’t have to ask. It’s out in the open, for everyone to see. (I could go on, but for lack of space. There are problems with the statement.)
There are more serious problems with HIS story, a major facet of which he’s already retracted—his claim that he hadn’t had sex with her. Funny. You didn’t mention that, did you?
Ginmar,
I believe everything that Delbert is telling us. He was there. How else could he know that her ankle tatoo was “out in the open, for everyone to see” and that she wasn’t, say, wearing socks or pants?
God, how stupid do you have to be to miss the simliary of the mindset. “Oh, he didn’t have to ask,” to “Oh, he didn’t have to rape.” We just don’t know what the guy felt he had to do–to get what he wanted.
Uh, Delbert, he could have asked for a closer look, even if it was on her ankle. If she was wearing a skirt, nylons, and regular shoes (as opposed to pants or socks, as Jake pointed out).
Next time a guy wants to take a closer look at my necklace, I’ll scream “NO! YOU MUST BE A RAPIST!” and beat him over the head with my Bandolino pumps.
Don’t forget!
dont forget what?
he didnt rape her. i went to school with her. she’s a fucking slut and th vaginal tearing wa probably from rough animal sex she bragged about up and down the halls of our dorm. she had group orgies in the showers, and she is a pathological liar.
enough said. no rape shield law for this fucking slut!
Well, I’m convinced!
Yeah, me too. How can we not be? I myself always find rumor, hysteria, vitriol, and misognistic sexual double-standards to be more convincing that logic or facts.
Pingback: Keywords
I assume everyone aghast at rape victim’s “characters” being put on trial will be equally aghast at the equal and opposite law allowing rapists characters to be put on trial, as in the Michael Jackson case.
Rape trials are equal opportunity offenders. Either put the character of both on trial or neither, but don’t criticize one without recognizing the assymetry created if only one is changed.
Actually, I pretty much agree with Richard; it would be better if trials (or at least identities) were kept secret until the results were known.
Wow… this is an old thread.
My view is that there is only one case in which the victim’s prior sexual history would be relevant, and that only because it has to do with more general issues of credibility and motive, albeit connected with sexuality: if she had a history of sexual blackmail, then that’s relevant.
Aside from that, if she’s had sex with ten men consensually, then she says she was raped by the eleventh, then, well, why should we discount her claims of being raped? After all, she didn’t consider the first ten rape, so something must have been different. If there are other cases where she’s blackmailed people, though, then that’s evidence for the defense.
Similarly, for the man, if he has just had sex with ten women consensually, then that’s evidence neither for nor against his raping the eleventh. However, if, in his prior history, he is known to have raped women, then that’s evidence for the prosecution.
Now… how to appraise the evidence when a woman with a record of sexual blackmail accuses a well-to-do man with a record of rape?
Could’t he have targetted her because he knew he’d get away with it? What’s HIS history?
I have to say I’m biased against the priveleged—-I’ve heard too many times the phrase, “Oh, he doesn’t need to rape.” He doesn’t need to rape presumes that it’s physiological, that it’s not his fault, and that women should just realistically factor that into their lives. It’s always invoked in the case of either rich or good-looking defendants.
I read a study somewhere that found that good-looking rapists got a pass because of their looks—-i.e.—that need to rape—-whereas good-looking rape victims were judged harshly because they provoked it. Similarly, a man who drank before raping was excused on account of the ‘alcohol made him do it’ but a woman who drank was drinking to ‘pretend to be vulnerable’ or was slutty or was just a drunk.
I don’t have much sympathy for the rapists shouldn’t get publicty argument, frankly. Has this ever been a problem on a par with what victims get hit with? Kobe Bryant is regarded now as some victim of that Vast Feminist Conspiracy. I’ll be more willing to treat attackers with kid gloves when their defenders do the same. The defense lawyer in the Orange County rape case not only killed the victim a slut but trashed her mother too. It’s not like Michael Jackson doesn’t have a history. I’d like to see some good faith demonstration of the ‘trash neither side’ principle—starting with some payback for the way victims have been treated. Once they get treated like other crime victims, then I’ll believe in the sincerity of the sentiment.
That defense attorney: Joseph G. Cavallo, is nicknamed “The Cur”, something he is PROUD of. Here’s a link for more information about that particular case:
http://www.ocweekly.com/ink/05/28/news-moxley3.php
I suppose I’m a bit biased when it comes to rape: I’m of the belief that when a person accuses someone of rape, odds are they feel they were raped instead of “just feeling bad about it the next day and wanting to hurt the guy”. Apparently, according to many of my male friends, I’m wrong; women just want to vilify guys who are just trying to get laid (regardless in my view it’s the victim that more frequently gets vilified, but I’m female, so I must be wrong).
Sorry, tangent rant. Anyway, the rape shield laws are there to make sure that NEITHER party’s past sexual history is admissible in the court of law. Doesn’t matter if you’re a playboy, doesn’t matter if you’re a slut, a virgin, and nerd with acne: the amount of times you have had consensual sex is IRRELEVANT.
Anyway, the rape shield laws are there to make sure that NEITHER party’s past sexual history is admissible in the court of law.
But that’s exactly wrong. The rape shield laws are there to protect plaintiffs. They are NOT there to protect defendants. The law cited in the article I linked to is there specifically to REMOVE that same protection from defendants.
There is a definite assymetry here, and it is not at the expense of the alleged victim.
Richard, are you totally unaware of history here, or are you just ignoring it? Either way, fix that.
The rape shield laws are there to protect plaintiffs.
In criminal cases, there aren’t “plaintiffs.” There is the prosecution, which is the State, or in some cases the federal government.
Past offenses going to credibility are admissible. If a woman has been convicted of extortion based on making false rape claims, those convictions are admissible. The rape-shield laws have nothing to do with it.
The evidence laws are supposed to consider relevant evidence, but exclude that which is ‘more prejudicial than probative’ (i.e. we don’t want evidence that has very little value but a big prejudicial effect). So the fact that a woman has had sex with lots of different guys proves pretty much nothing about whether she was raped by the defendant, but it’s traditionally been a a way for defendants to say “She’s a slut, so she deserved it.”
Richard, are you totally unaware of history here, or are you just ignoring it? Either way, fix that.
I don’t know what that means. All I said was that rape shield laws have nothing to do with protecting the defendant. The Federal Rape Shield Law is called Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition Are you saying that you think that Rape Shield Law protect defendants too? That is simply wrong.
The evidence laws are supposed to consider relevant evidence, but exclude that which is ‘more prejudicial than probative’
You are quoting FRE 403. That is not the Rape Shield law. The rape shield law obviously will exclude more than is excluded by FRE 403, or else you wouldn’t need another law.
In any event, I am neither criticizing or defending rape shield laws. I am merely saying that they are inconsistent with laws that allow evidence of other, different, unproven crimes against a defendent. The clear intent of these laws is to say, “He’s a bad guy. Lock him up. Even if he didn’t do this, he probably did something bad.”
The rape shield law obviously will exclude more than is excluded by FRE 403, or else you wouldn’t need another law.
Sure you do. If you look at rules of evidence (not just federal; similar language is in every state, AFAIK), you will see all kinds of rules addressing all kinds of situations. If we could just say “More prejudicial than probative and it stays out,” we wouldn’t have a zillion rules on hearsay, for example.
The point of the rape-shield law is to say that particular kinds of evidence are deemed more prejudicial than probative, instead of having judges decide on a case-by-case basis whether the accuser’s having had sex with two different guys last year is relevant. If you’d bothered to read the actual law, you’ll see that there are very detailed exemptions.
The clear intent of these laws is to say, “He’s a bad guy. Lock him up. Even if he didn’t do this, he probably did something bad.”?
Um, no, that would be the point of a law that permitted introduction of any prior bad act by the defendant as evidence. I think you should put aside your defensiveness and actually read what the rules say. How do you get from “It’s not admissible that the accuser has had sex with other guys unless you’re trying to show the other guys are the source of semen or injury,” to “The defendant is a bad guy, lock him up”?
Wow, what absolute garbage.
Richard, the clear intent of rape shield laws is to protect rape victims from being put on trial for not being virgins, and to disallow irrelevant evidence about a rape victim’s sex life.
[Note: I wrote this before reading Mythago’s far superior response.]
There is a definite assymetry here, and it is not at the expense of the alleged victim.
God, how awful. Beause it should be at the victim’s expense, shouldn’t it? Why should we offer rapists protection that we don’t offer the defendants in other crimes? It’s not like they even face a substantial chance at conviction.
“The defendant is a bad guy, lock him up”??
He obviously got that from the secret feminist handbook that is used in designing all laws. Somebody must have slipped and sent him one.
The clear intent of these laws is to say, “He’s a bad guy. Lock him up. Even if he didn’t do this, he probably did something bad.”?
I think I was misinterpreted, or maybe I was not clear. By “these laws” I did not mean rape shield laws, I meant the laws that allow evidence of all prior acts to be brought in against defendants. From the article I link above:
Evidence of “other offenses not previously charged or reported, even when that behavior differs from the alleged conduct for which the accused is standing trial”? That sounds like putting the character of the defendant on trial, in anything does.
or maybe I was not clear
No, you weren’t, since you specifically referred to rape-shield laws.
I also have problem with the laws you refer to. It’s one thing to say that we’re going to specifically say many sex offenses fall under the ‘pattern/common motive’ exception; it’s another to say that we’re going to throw the ban on prior bad acts out the window when it comes to sex crimes. (As if there aren’t serial burglers or serial batterers.)
“Aside from that, if she’s had sex with ten men consensually, then she says she was raped by the eleventh, then, well, why should we discount her claims of being raped? After all, she didn’t consider the first ten rape…”
Absolutely, Julian. If our society didn’t have such a ridiculously misogynistic attitude against women that are sexually active, it would be patently clear that the above hypothetical woman should be considered as the highest standard of credibility! She has an established pattern of NOT falsely accusing those who she has had consensual sex with. Therefore, it stands to reason that she would not falsely accuse this man either, had the sex had been consensual.
Perhaps (in my dream world, where we could actually change the misogynistic attitudes that women that have had more than one sexual partner are bad and tainted), feminists would do better to stop trying to have previous sexual history banned from the testimony, but instead EMBRACE that sexual history, and force the juries to confront their misogyny. For as Julian points out, if not for that misogyny, the rape survivor’s consensual sexual history could only be seen as positive for that survivor’s credibility.
(Yes, I am aware that this could not really play out as I envision it– but I can dream, can’t I?)