From The Globe and Mail:
Although Colorado’s rape laws are designed to protect alleged victims from publicity and to keep the victim’s sex life from being publicized, the laws appear to have collapsed under the press of high-priced lawyers and inquisitive media outlets, especially tabloid newspapers, consumed by the case.
While major media outlets have avoided revealing her identity, the woman’s name, photo and biography have been splashed across supermarket tabloids and Internet sites, and talk-radio hosts have made sport of her florid sexual reputation.
Fans of the basketball player have besieged her with angry phone calls and visits, forcing her to live on the run, moving to four states in the past six months.
This is, of course, precisely the kind of intrusion and intimidation that rape shield laws are supposed to head off. Regardless of if Kobe Bryant is guilty or not, imagine what the next woman raped by a sports celebrity will think; she’ll look at the Kobe Bryant case and know that if she presses charges, she’ll be tried, convicted and punished in the court of public opinion. What a great day for sleazy defense lawyers everywhere..
We may not know whether or not Kobe Bryant is a rapist. But we know for sure that he is a huge asshole.
I’m beginning to think that this whole trial is simply a waste of time. Let’s just let Kobe be released… right into the middle of a large, and well-armed, Take Back the Night March. Now **that** would make a good segment for Court TV!
Obviously the lesson for women is, if you ever consent to sex with any man, you instantly consent to sex with every man for all time. The lesson for men is if you are good at sports you can get away with anything. Truly this is a great day for justice.
Ahh, basketball zealots and sports-star-hero worshippers…the very cream of the crap.
As I understand it, the reason for testifying about other sexual partners is the defense’s contention that she had sex between the time of her sexual encounter with Bryant and the time that she was examined for rape. This testimony would be barred under a “rape shield” law that would prevent discussion of even relevant other sexual partners.
As a strong believer in defendant’s rights, I can’t imagine a defendant being denied the ability to defend himself by providing evidence that the actual perpetrator was actually someone else (who maybe did not have as deep pockets.)
None of this, of course, legitimizes any of the personal attacks aimed at the (possible) real victim, but the actions of non-parties also should not effect the legitimacy of Bryant’s defense tactic — especially if he is innocent!
“As I understand it, the reason for testifying about other sexual partners is the defense’s contention that she had sex between the time of her sexual encounter with Bryant and the time that she was examined for rape.”
Why not point to the physical evidence that turned up in her rape exam? Why make a big deal out of the numbers (Pamela Mackey went on and on about the possibility of three men in three days! Oh, the horror!).
Also, having sex after a rape doesn’t mean the rape didn’t happen–and I know rape survivors who did get aggressively sexual after their rapes. Going with that theory would blow the defense’s case, IMO–it would take away from the questionable physical evidence.
“This testimony would be barred under a ‘rape shield’ law that would prevent discussion of even relevant other sexual partners.”
Not one person has been able to satisfactorily explain how someone’s sexual history is relevant. Unless, of course, you believe that being promiscuous means one can’t be raped, or makes one a liar.
“As a strong believer in defendant’s rights, I can’t imagine a defendant being denied the ability to defend himself by providing evidence that the actual perpetrator was actually someone else (who maybe did not have as deep pockets.)”
No one else has been accused of rape. As someone who finds false accusations of any crime abhorrent, I hardly think they are okay when put forth by the defense. Also, I don’t see how it’s constructive to pull out the tired old “she wants his money” routine. Not only does that theory reek of mothballs, the plantiff has stated repeatedly that she has no intention of suing Bryant.
Also, the fact that the defense is throwing these theories about the plantiff (she’s crazy, she schemed to use Bryant, she’s slutty) out to the press and public like so much red meat is sleazy.
Unless, of course, you believe that being promiscuous means one can’t be raped, or makes one a liar.
You’ve hit the nail on the head right there. Living on a college campus, I see it all the time. A girl who sleeps around is a slut. Sluts are, in most people’s minds, inherently dishonest. I mean, she’s a slut, right? She could say anything!
I’ve been following this case closely since it’s beginning and the defense lawyers keep getting nastier and more disgusting as time goes on. Understanding that their job is to fight on behalf of their client, I wonder where their ethicality has gone. Of course they understood that ruining the girl’s credibility was one of the only ways to advance their defense which relies on every stereotype about women in the book, not to mention stereotypes about rape victims: she’s slutty, shifty, money-grubbing, lying, mentally ill, untrustworthy.
As Neko points out, the psychoology of rape victims seems to have been completely avoided by the defense. That she might be free with her sexuality anyway may lead to extreme promiscuity after rape. Documented time and time again. This omission of rape research, along with everything else they are avoiding, plays into every stereotype about rape and femininity that we have.
Furthermore, it baffles me that Bryant’s fans are so hopelessly devoted to him, for little more than being able to throw a ball through a hoop. Good for him. I do it every day in my parking lot. Where’s my gold medal?
Shame on them. If this hasn’t put the public attitude toward victims’ rights back by decades, I don’t know what will.
They were allowed to admit the sexual history as evidence on a technicality, I do believe, since having sex after a rape but before the rape kit is done can interfere with the quality of evidence collected. But their arguments seem to have extended way beyond introducing doubt about the quality of the evidence and are using it as an excuse to drag out the “Sluts can’t get raped” defense. It’s important to remember that the people who are buying the argument don’t realize they are subscribing to a tired old stereotype. The reasoning is something like: Well, if she put out for these other guys who were nobodies why would she hold back from a basketball star?
Not one person has been able to satisfactorily explain how someone’s sexual history is relevant.
Speaking in the abstract ONLY, as I have no knowledge of this case (Nor do I really want any. I try to avoid the various “trials of the minute” as much as possible.) I can see more than a few cases where the sexual history of the accuser is relevant to a legitimate defense.
Fer example:
1) The accuser claims to have been raped by multiple men at the same time.
2) The men admit the sexual contact, but claim it was consentual.
3) The prosecution argues that this is bullshit, and the accuser is absolutely not someone who would engage in group sex.
Okay, well, in that specific case, there’s nothing wrong, in my view, with the defense delving into the question of the accuser’s sexual history in regards to group sex . . . because the prosecution’s claims are based on the idea that the accuser “doesn’t do stuff like that,” and it’s hardly fair to prohibit the defense from answering those claims.
Of course, the most difficult part of all this is where to draw the line, and how to avoid allowing the defense to turn legitimate inquiries into irrelevant smears. I don’t know what the answer is on how to do that, I’m just saying that sexual history isn’t 100% irrelevant all the time.
—JRC
“Why not point to the physical evidence that turned up in her rape exam? Why make a big deal out of the numbers (Pamela Mackey went on and on about the possibility of three men in three days! Oh, the horror!).”
Because the “physical evidence” is meaningless without a context for interpretation.
Prosecutor: What did the physical evidence from the rape examination show?
Expert: The examination showed pinpoint lacerations near the woman’s genitals.
Prosecutor: Is that finding consistent with rape?
Expert: Yes it is.
Defense Lawyer: Could anything other than rape be consistent with those findings?
Expert: What do you mean?
Defense Lawyer: If, for example, a person had sex with the defendant and had sex with another person earlier in the day, and a third person the next day, could the combined effect of those three encounters — rather than a single encounter — have been the cause of those lacerations?
Expert: Yes, that would be another possible interpretation, especially since the rape kit is less reliable if there has been intervening sexual encounters.
Defense Lawyer: I would now like to demonstrate reasonable doubt by showing that, if fact, the accuser did engage in . . .
Prosecutor: Objection! Rape shield law! The accuser’s other sexual history is presumptively irrelevant.
Defense Lawyer: Hey, we didn’t bring up the genital lacerations. But if the prosecution is going to rely on physical evidence as part of it’s rape case, should not the defense be permitted to provide, and prove, a perfectly reasonable and factually based alternate explanation?
Judge: . . .
Here’s where the case is. How is a judge supposed to (a) permit physical evidence in a criminal case and (b) not permit a factually possible alternative explanation to be vigorously pursued?
Well, if she had sex with many people in that short a time, then sure, that’s reasonable doubt. But to bring up other sexual encounters throughout her history then going public with it isn’t about pursuing alternative explanations, it’s about smearing the accuser.
Rv. Agnos, why not just say “the pinpoint lacerations could have been caused by consensual sex” and point out that the rape exam showed evidence of another partner? That would cast doubt on the physical evidence without some puritanical and silly obsession over the number of partners the plantiff may or may not have had. The histrionic “she had sex with three men in three days” comment comes off as a sleazy ploy, not as a vigorous defense. And really, would it be less relevant if she had a lot of sex with one man over three days? The physical evidence could still be called into question, no? The pubic hairs, the pinpoint lacerations, etc. Why titilliate people, unless the goal is to smear the plantiff?
Frankly, between the attempts to rifle through the plantiff’s medical and mental health records, the rumour-mongering by the defense about her supposed desire for attention (how dare she try out for American Idol!), and their obsession with the plantiff’s sexual history, the defense is looking sleazy. You wouldn’t see these tactics in a larceny or theft trial. Just because something’s missing doesn’t mean it was stolen–but if there is a trend to opening up plantiff’s psychological records and looking into their giving history, it’s been a well-kept secret.
JRC–I don’t know of too many prosecutors who would say the plantiff would “never do something like” group sex, etc., since someone may well have had consensual group sex. It doesn’t mean they can’t be gang-raped. I’ve had plenty of sex, but that still means I can be raped.
Admittedly, I haven’t been following this case very closely, so I don’t know all of the details. Why are the lacerations, regardless of cause, so important? Putting so much importance on this detail reaffirms the idea that women must fight back rape with all their force in order for it to be called rape. How irritating! If a victim fears for their safety they may not put up as much resistance, but that doesn’t make the act consensual.
A true story.
I have been on exactly one jury on my life (don’t ask why I couldn’t get out of jury duty, I don’t know.)
It was a criminal trial in Philadelphia. The plaintiff, three defendants, and police were all of the same race/ gender/ ethnicity, so none of that stuff came up.
The plaintiff claimed that he was carjacked. He had gone to a party to meet a girl, and some other guys at the party followed him out afterwards, waited until he opened the car door, and then beat him and stole the car. The were caught within the hour and arrested.
The defense was . . . Yes, you guessed it, Consent. Essentially, “Just because something’s missing [taken] doesn’t mean it was stolen.”
“He lent us the car,” the defendants all claimed. There was a map, showing where they were pulled over by the police. The defense attorney made a big deal about how if they had made a left turn at that street, it would take them back to the party, a few miles away.
On cross examination, the plaintiff was asked, “You went to the party to meet a girl, didn’t you? . . . Didn’t you think the girl would consider you generous and a good guy if you lent the car to some of her friends who were there . . . Guys do stupid things to impress girls all the time. What really happened was you lent them the car, and then when they took longer than you though to return, you panicked and called the cops, right?” They came right out and asked if he was hoping to have sex with her that night. (He was hoping, but he didn’t.)
We didn’t believe the defendants — or rather we believed the plaintiff much more — and ended up convicting on most (but not all) of the counts.
In the jury room, though, some questions were raised by other jurors. How come this girl he went to meet wasn’t called as a witness, or even named? Why weren’t any other party-goers there? The only witnesses were the plaintiff, defendants, and police. It was pointed out that the defendants didn’t call any witnesses to corroborate their story, either. Wouldn’t someone else at the party have seen what happened and step up to defend them? We finally concluded that the doubts some of us had weren’t “reasaonble,” and convicted.
If I’m a juror, and I hear insinuations about “the pinpoint lacerations could have been caused by consensual sex, and the rape exam showed evidence of another partner” that is relevant evidence that I will consider. If no other evidence is presented about this phantom person, and the plaintiff is not even asked about “another partner” when she takes the stand, that evidence gets significantly discounted in a jury’s mind.
The truth is, 90% of what we did as jurors was weigh credibility. A jury should be able to look at the plaintiff when the defense lawyer asks the hard questions and make that determination.
People state that the rape shield law prevents the victim from being put on trial. But if the allegations are untrue (and none of us really know now), then we don’t know in advance who the real victim is here. Which is the worse result — the plaintiff being asked questions about her sexual history that are only tangentially relevant, or the innocent defendant being sentenced to years in jail because he was barred from presenting the best defense possible?
How do you determine credibility though? Is it completely based on a defense that has strategically framed their argument to discredit the victim? I wouldn’t call that the “best defense possible.” I would call that the best way to manipulate a jury by playing on the assumptions society has about supposedly promiscuous women.
If no other evidence is presented about this phantom person, and the plaintiff is not even asked about “another partner” when she takes the stand, that evidence gets significantly discounted in a jury’s mind.
But there was evidence of another partner–the rape exam turned up semen and pubic hairs of a caucasian male. We hardly need to interrogate the plantiff about who she had sex with, and how many people she may or may not have had sex with. There was no need for the defense’s tabloid theatrics in screeching about “three men in three days!!!” I wouldn’t need to know the gory details if the physical evidence were corrupted.
In your court case in Philly, was the plantiff’s medical/psychological records opened for the defense’s perusal? Hey, he could have had a history of mental illness, which would have affected his credibility. This is something that happens all too often in rape cases.
I don’t know much about the court system. Is the credibility of the defendent ever considered? I mean, if the guy’s a big liar, if he has a history of violence, or infidelity, wouldn’t that be just as relevant?
Also, couldn’t the judge have just put a gag order on the whole proceedings? While the defense’s tactics do indeed seem more than a little sketchy, perhaps it would have been better for all concerned if the victim’s goddamn picture, especially that particular one (“Look, she’s promiscuous and not especially attractive!”), hadn’t been available in grocery store aisles across the country.
I don’t know of too many prosecutors who would say the plantiff would “never do something like” group sex, etc., since someone may well have had consensual group sex.
Well, actually, a prosecutor will use whatever he needs to in order to make his case in court . . . especially if the evidence that the accuser “may well have had consensual group sex” will never be heard by the court.
It doesn’t mean they can’t be gang-raped. I’ve had plenty of sex, but that still means I can be raped.
I agree utterly with the sentiment, but I think you’ve missed my point. I’m not saying for one moment that participation in one consentual form of sex means that any time you have that kind of sex, it’s therefore consentual, and I agree with turning to physical evidence wherever possible, but there are times when the physical evidence in inconclusive . . . in fact, in cases where a person is falsely accused of rape, I would guess the physical evidence is inconclusive more often than not.
In the absence of physical evidence or in cases where the physical evidence is inconclusive, the prosecution often turns to arguments which claim that any sexual contact between the defendant and the accuser wouldn’t have been consentual due to the accuser’s sexual preferences. Cases where the defendant is black and the accuser is white are the classic example, of course, but group sex, BDSM, gay sex, etc, are all equally applicable.
1) Black boy and white girl have sex.
2) White girl’s daddy finds out and flips.
3) White girl claims it was rape, because she can’t tell her daddy otherwise.
4) The physical evidence is inconclusive . . . could be rape, could be consentual.
5) Black boy claims it was consentual.
6) Prosecutor paints a picture of a savage black predator preying on this innocent little virginal white girl.
7) It comes down to his word versus her word. He claims it was consentual, she claims she would “never do something like that.”
This isn’t an out-of-the-question scenario. Prosecutors DO use this tactic, and in a case like this, I think it would be utterly reasonable for the defense to bring up the fact that the accuser was well known around her school for liking black guys. Please note that I’m NOT saying that it would be impossible for her to be raped by a black guy just because she likes to have sex with black guys, just that the argument “my girl wouldn’t have had consentual sex with him because he’s black” is an argument which deserves rebuttal.
As I said earlier, I think that the situation is a tricky one, and for every example I see on the one side, I see just as many on the other. Often, the defense will bring up sexual history just to smear the accuser . . . but if you think for one minute that the prosecution is less willing to engage in sleazy tricks for the sake of winning, you’re living in a dream world.
My best solution: If the defense has evidence regarding the accuser’s sexual history which they feel is valid, allow them to present it to the judge in chambers. The judge will review prosecution and defense arguments, and decide if the evidence should be heard by the jury. That way, there’s no prejudicial stuff introduced to the jury which then has to be objected to, etc . . .
It’s not perfect, but I think it’s better htn either a solid “anything goes” or a solid “nothing goes” policy.
—JRC
Still with you, Neko. They moralized the evidence where it wasn’t needed. Period.
Last time I checked, that was still sleazy. Yup, still sleazy.
Wait, now not sleazy . . . oh now sleazy again.
Sorry.
Is Kobe Bryant a rapist?–Maybe
Is Kobe Bryant a scumbag punkass adulterer?–Absolutely
If he’s convicted, I hope they lock his dumb ass up and throw away the key.
BUT, I have a question for any guys, ok…hell anyone who cares to answer, out there.
You are in Kobe’s size 43 or whatever freaky clown shoes he has. Let’s assume you are innocent. You’re now facing life in prison. Would you not expect your attorney to attack your accuser with the same fervor? Would you prohibit your lawyer from dragging your accuser through the proverbial mud because of questionable ethics?
Also, did anyone else wonder about the accuser’s credibility when you heard she showed up for the rape exam with underwear stained with another mans semen? Do you think that maybe she invited this line of attack questioning when she did that? I know she would probably have been attacked in court anyway, but that certainly didn’t help her case.
Quad, I don’t have the time to attack your post with the vitriol and anger that it so, so deserves, so I’ll leave others to do that.
But I will say it is not the client’s responsibility to keep his or her lawyer ethical. It’s the lawyer’s responsibility. And it’s the lawyer’s responsibility to do everything he or she can in his or her client’s best interest but keping ethics as a guideline. A client would be well served if the lawyer paid a thug to beat the judge up to ensure that the judge rules in favor of the client, but that would make a mockery of the judicial process.
I’m just trying (though it pains me to do so) to see this from the viewpoint of someone on trial for his life. I’m not sure why that deserves vitriol and anger.
I was referring to the part about the rape exam, but once again, I am in a hurry. I pass the torch to, oh, I don’t know – Amy?
I think it’s necessary to distinguish between legitimate and illegitimate uses of the exceptions to the rape shield laws.
The very fact that the public knows so much about this – and that Bryant’s fans have been using this public knowlege to torture and intimidate the alleged rape victim – is, to me, a severe misuse of the exceptions. There is no benefit to justice that is done by making this information public. And there’s a severe injustice done, because other rape victims are almost certainly being discouraged from coming forward and pressing charges.
There are, certainly, some legitimate exceptions to the rape sheild laws. I don’t deny that, and I don’t oppose that. Bryant, like everyone else, has a right to bring up all relevant evidence in his defense, to the judge and to the jury.
But I’m not convinced that all the evidence that’s been snuck in through the exceptions to Colorado’s rape sheild laws should have been. More importantly, I think the Judge could have done much, much more to squash the information that’s being given to the public about the (alleged) victim.
Bryant has a right to present evidence to the jury; he shouldn’t have the right to use the trial process to humiliate and torture his (alleged) victim in the press.
Right, Amp, I think that’s a pretty reasonable position. As I said, I know less than nothing about the specifics of this case, so any arguments I make are, of necessity, general ones. The Kobe Bryant case specifically may be a textbook example of defense abuses of the Rape Shield exceptions, and if it is, I condemn those actions completely. I’m just saying that there certainly CAN be cases where an accuser’s sexual history is relevent . . . whether or not this is or isn’t one.
—JRC
“How do you determine credibility though? Is it completely based on a defense that has strategically framed their argument to discredit the victim? I wouldn’t call that the ‘best defense possible.’ I would call that the best way to manipulate a jury by playing on the assumptions society has about supposedly promiscuous women.”
In a trial, credibility is determined through the jury looking at a witness as she answers questions directed to her by both friendly and opposing attorneys. Is her story consistent? Does she look like she’s lying? When a prosecutor’s case is based primarily upon a single witness claiming “He raped me,” a defense attorney’s best response is, “She is lying.” Most witnesses are not trained actors on L.A. Law. It is often not difficult to distinguish the liars — and the world is unfortunately filled with lots of liars, irrespective of the truth in this case.
“In your court case in Philly, was the plantiff’s medical/psychological records opened for the defense’s perusal? Hey, he could have had a history of mental illness, which would have affected his credibility. This is something that happens all too often in rape cases.”
There was no mental illness evidence. I don’t know if that was supressed or if it was non-existent. Lots of times in a trial, jurors are sent off and lawyers argue about stuff. When we come back and the lawyer says, “I would now like to enter this gun as People’s Exhibit 1,” we could pretty well guess that they were arguing over the admissibility of the gun. When we came in and normal trial stuff happened, we didn’t ever get to find out what was supressed.
There was a lot of medical testimony, however, because the plaintiff walked with a cane and a big limp, and the defense needed to make a big deal over the fact that this was a pre-existing condition, and he was not claiming that this injury was caused by the defendants. If it was not brought up, I certainly would have made that assumption.
“I don’t know much about the court system. Is the credibility of the defendent ever considered? I mean, if the guy’s a big liar, if he has a history of violence, or infidelity, wouldn’t that be just as relevant?”
“Bad person” evidence is not permitted to be entered into evidence. A person with a history of violence cannot have that information brought into a case. A specific “m. o.” however, can be entered. If a person has a history of meeting women in restaurants, inviting them up to his room, and raping them, that would be admissible as the defendant’s modus operandi, even though it presents evidence of bad character in addition. Also, the fact that a defendant had been tried and ACQUITTED in twelve rape trials is usually admissible, since the standard for admissibility in court is lower than required for a conviction, although defense attorneys have a reasonable argument that this evidence should be supressed as well.
“But I’m not convinced that all the evidence that’s been snuck in through the exceptions to Colorado’s rape sheild laws should have been. More importantly, I think the Judge could have done much, much more to squash the information that’s being given to the public about the (alleged) victim. . . Bryant has a right to present evidence to the jury; he shouldn’t have the right to use the trial process to humiliate and torture his (alleged) victim in the press.”
Everything that has been said to the media has not “snuck throug the exceptions,” as the media is not the trial. Assumedly, the judge will weigh the value of the evidence versus the risk of prejudice and let some in and keep some out. That fact that each bit of evidence has SOME evidentiary value (however small) and also has SOME risk of prejudice (however large) means that it is reasonable to ask a judge to sort out what comes in and what goes out. So far, nothing has gone in, since the judge hasn’t ruled yet.
If we want to have totally secret trials where no one gets to talk about what’s happening inside the secret chambers, that’s one thing.
If, instead, we want to have open trials, we need to permit robust defenses. Assume, for a moment, that Bryant is completely innocent of everything except infidelity. He has been convicted a crime he did not commit. He might have to go to jail. It possibly will ruin his career. It will definitely cost him millions of dollars in endorsements. Lots of material about Kobe’s sexual life is now public record. Some of that information is only marginally relevant to the rape case. If this happened to you, I am sure that you would feel that you had been “humiliated and tortured in the press.” I know I would.
I might also think that — if I am innocent, and if my name has been raked through the mud in the press — my only chance is to make my case in the same place. And I might use evidence that could not be admissible in court.
If a person has a history of meeting women in restaurants, inviting them up to his room, and raping them, that would be admissible as the defendant’s modus operandi, even though it presents evidence of bad character in addition.
So you’re saying that only evidence that the accuser has a history of accusing men of rape should be allowed in court. Not her sex life in any way, shape, or form; that’s a “bad person” accusation. If that’s not what you’re saying, shouldn’t the accuser be allowed to use any evidence possible to support her case, including proof that he’s a liar (he could be lying now), violent (rape isn’t out of the question), or an adulterer (hey, if he’s willing to cheat on his wife…)?
(Note: I’m not saying this is correct, just that this is how I interpret Rv. Agnos’ comment.)
I don’t see Bryant getting dragged through the mud in this, and I haven’t read anything in the news about his sex life. I have, however, heard ad nauseum about the plantiff. I’ve heard theories put forth by the defense that she was scheming to get the attention of her ex, that she’s crazy, and that she’s a slut. I’ve heard them ask to investigate a “rumour” that she “plans to write a book.”
There is a huge difference in the defense pointing out that someone’s injury or handicap was definitely caused by something else/is a prexisting condition and rifling through their private medical records. If I was raped but not beaten, and I showed up to court with a cast on my arm, of course it would be fine for the defense to make sure everyone knew how I broke it, and that it wasn’t a result of the rape I said happened. And if someone was raped but waited to get the exam, and the physical evidence was corrupted, I’d expect the defense to point that out. What isn’t okay is the defense going through the plantiff’s medical and psych records–records which have very personal and painful information–and making some of the details public. What isn’t okay is asking me about the minutae of my sex life and implying that I must not have been raped since I’m obviously such a slut.
My point in bringing up the mental health records was that in any other case, it’s a non-issue. Again, if there is a trend in doing so in cases other than sexual assault, I have yet to hear about it.
Hestia,
The analysis is not symmetrical. The rules of evidence are intended to protect DEFENDANTS from jurors making the connection “Defendant is a bad person, therefore Defendant likely committed this crime.”
Defendants are given broader latitude in providing their defenses.
But it’s OK for the defense to say, “Accuser is a bad person, therefore Defendant likely didn’t commit this crime”? I don’t buy it. I understand that it’s unfair to make a defendent seem mean and horrible in order to more easily convict him, but shouldn’t the same reasoning apply to the accuser? And if not, why not? “Because she’s the accuser” doesn’t seem like a very convincing answer to me. (Again, I don’t know much about the court system, so if there’s some rule that applies here, I’d like to know what it is.)
Seems to me all “bad person”-related evidence–especially the number of people the accuser has slept with in the past, which suggests that, as Sheelzebub has been saying, the she’s a “slut”–shouldn’t be admissible, hence the rape shield laws.
Of course women never lie about rape! So we can forget about due proccess all together. Every Black man who got lynched was really guilty….Well maybe it wasn’t right when they were murdered by Southern rednecks in the ’50s and ’60s, but by radical feminists in the ’90s and ’00s – that’s totally groovy!
Abe, I think you’ve missed the point of the discussion.
Also, did anyone else wonder about the accuser’s credibility when you heard she showed up for the rape exam with underwear stained with another mans semen? Do you think that maybe she invited this line of attack questioning when she did that?
Your absolutely right!!
Next time I plan to be raped, I’ll make sure I haven’t had consensual sex recently….
Let’s try some neutral examples:
1. Accuser claims financial damages for assault. Defendant wishes to bring in evidence that accuser has sued a dozen other people in the past two years for various offenses. Defendant wants to bring in this evidence of past times pressing charges to show that accuser is just “the sort of guy who sues people, whether he’s got a case or not.” Accuser claims that the other cases are completely irrelevant. Besides, they weren’t for assault: they were for infliction of emotional distress, libel, slander, etc.
2. Accuser sues defendant in a motor vehicle crash for damages. Defendant says he was driving carefully, and that accuser was driving like a maniac. Defendant wants to bring in evidence of accuser’s 10 speeding tickets from the past year. Accuser protests, “Just because I was speeding on these ten days says nothing about whether I was speeding on the day of the accident. Besides, there are people who drive very fast but safely, they don’t mean I was a bad driver.”
3. A is accused of theft. B was an eye-witness. The A’s Defense wants to raise B’s conviction for theft on the theory that B was so quick to finger A in order to divert attention from himself, who might otherwise have been a suspect.
4. A defendant in a mail fraud case wishes to present evidence that the accuser is mentally ill and the accusation stemmed from a personal vendetta concocted in the accuser’s own mind. (A real case from 1983. The Court found that the evidence should be admitted.)
The test is always the same. Does the probative value outweigh the risk of prejudice. It is not always an easy question.
If a woman has had consentual sex with 10 men in 10 days, does it make it more likely that the sex on the 11th day was consentual? On a statistical level, the answer is almost certainly “yes.” Of course, trials are about facts, not statistics. So, how does the certain (but small) probative value compare to the prejudice, which is based entirely on the empirical prejudices of the jurors, and will necessarily vary based on the location of the trial and the makeup of the jury?
And if it’s at all close, don’t you have to lean on the side of the guy who wants to put on the evidence to stay out of jail?
If a woman has had consentual sex with 10 men in 10 days, does it make it more likely that the sex on the 11th day was consentual? On a statistical level, the answer is almost certainly “yes.”
Again, she’s a slut; therefore, she is lying.
If a woman has had consentual sex with 10 men in 10 days, does it make it more likely that the sex on the 11th day was consentual? On a statistical level, the answer is almost certainly “yes.”
More to the point, this is absolutely ridiculous. If a woman has consensual sex with 10 men in 10 days, then I agree it’s pretty likely she’ll have consensual sex with an 11th man on the 11th day. But this fact has no bearing on if she is raped on the 11th day, since rape is not the same thing as consensual sex.
If a woman has consensual sex with 10 men in 10 days, then I agree it’s pretty likely she’ll have consensual sex with an 11th man on the 11th day. But this fact has no bearing on if she is raped on the 11th day, since rape is not the same thing as consensual sex.
The problem is that rape cases so often come down to he-said-she-said: She says it was rape, he says it was consensual. And as far as I know, there’s no physical evidence that would allow an examiner to tell after the fact whether sex was consensual or not. So we’re left with a choice between his word and hers.
On the one hand, there’s the risk of jailing an innocent man; on the other, the risk of giving men the impression they can rape with impunity. Neither option looks particularly good to me.
And as far as I know, there’s no physical evidence that would allow an examiner to tell after the fact whether sex was consensual or not.
Well, there’s no way to tell with 100% accuracy, but there are several things that can indicate forced penetration, and in most cases, these are distinctive from bruises and abrasions that might be found after “rough sex.”
If a woman has had consentual sex with 10 men in 10 days, does it make it more likely that the sex on the 11th day was consentual? On a statistical level, the answer is almost certainly “yes.”
May I add q2: If a woman has had consensual sex with 10 men in 10 days and accused none of rape, is it likely that she would falsely accuse the 11th?
On a statistical level, the answer is “No, she is not likely to acccuse the 11th of rape.”
And lucia’s Q2 is a perfectly good response that I would expect the defense to make.
The criticisms here seem not so much aimed at the Defense’s tactics as it is to the very concept of a jury trials.
The underlying impression I’m getting is that people feel that jurors are easily fooled bigots who think that sluts lie and rape victims never have consensual sex.
If people don’t want to trust juries to hear what both sides have to say and come up with a reasonable conclusion, then why have jury trials in the first place?
We all know that sexually active women can be raped. Why keep a defendant from making the most vigorous defense he can on the grounds that the jury will be too dumb to figure out what’s going on?
Exactly, Lucia. You hit the nail right on the head. And this is exactly why the puritanical promiscuity defense is completely full of shit.
There is a huge difference between the defense bringing up prior legal cases that could affect the credibility of a plantiff or a witness, and the plaintiff or the witnesses’ sexual behavior.
Well..and juries consist of a number of people (traditionally, but not always 12). If I were on the jury, both questions, and their “statistically likely” answers would occur to me. So I would be looking to other evidence.
I’m afraid I’m not reading every snippet published on the Kobe case. Some has been behind closed doors.
Still, out of curiosity, has the defense brought forth the sexual partners with evidence that the recent consensual sex was rough and either did cause injury or was likely to have done so?
I have read that the defense wants to force her testimony to suggest might have caused the injury. (And, I think any defense attorney would do that, even if the only goal is to cause confusion that helps their client. That’s our system!)
Whatever evidence the defense ultimately brings forward, a juror is going to have to decide if injury during the admitted consensual sex is probable, or just hypothetically possible. (As in.. “anything is possible”.)
After deciding that, they will need to determine whether they think the defense introduced a “reasonable doubt”. That will probably be based on additional evidence anyway.
I guess… in the fullness of time, we will all hear, right?
there are several things that can indicate forced penetration, and in most cases, these are distinctive from bruises and abrasions that might be found after “rough sex.”
But rough sex isn’t always non-consensual, and coerced sex isn’t always rough…
The whole thing is a minefield, I guess.
Well, no physical evidence is undebatable. This is why to be found guilty of a crime it has to be beyond the shadow of a reasonable doubt, and not just a doubt. I mean, it’s always possible that someone’s genetic clone committed a series of crimes and left, leaving the original to take the blame. But this isn’t a reasonable assumption.
I love it! A victim shows up with another man’s semen in her panties, and that means that she couldn’t have been raped. What is that line of logic supposed to prove? Is that to make the sexist pigs on the jury angry that she wasn’t faithful to her rapist?
The defense is also using people’s ignorance about anatomy to make points. “Another man’s semen” is implying that the poor girl never changes her underwear, and totally ignoring the fact that trace amounts of semen will come out for days after sex. And, of course, they are playing off the stereotype that a lot of sex somehow damages a woman’s vagina in the same way that rape does, though it does not. And, they are playing off the myth (hope?) that a man with a “big dick” somehow leaves the same kind of damage that forceful penetration does. (It doesn’t. I can assure you. Call a gyno if you don’t believe me.)
I’m reminded of a headline from The Onion: Our Dumb Century:
“Convenient Double-Standard Reclassifies Women as Virgins, Whores”
I think that’s it. There’s an implicit axiom in our society where, as I moreorless sarcastically stated earlier, if a woman consents to sex with a man she’ll consent to sex with any other man. What good does it serve the system of justice to allow defense attorneys to play off that illogical stereotype?
“‘Another man’s semen’ is implying that the poor girl never changes her underwear, and totally ignoring the fact that trace amounts of semen will come out for days after sex.”
Ah. I learned something today–about the trace amounts coming out for days after sex, I mean.
But rough sex isn’t always non-consensual, and coerced sex isn’t always rough…
That’s my point. There are things that a trained person can look for to distinguish between forced penetration and “rough sex.” The bruises and abrasions from consensual “rough sex” will appear (many or most times) different from forced penetration, even if that forced penetration is not “rough.” As I said, it’s not 100% accurate 100% of the time, but there are signs that can be used that are accurate more often than not.
As for how this evidence is read by the juries, that’s debatable. I know of one case where a 14-year old girl was raped by a 14-year old boy. There was a large amount of physical evidence — brusies on her back and head from where he threw her down; vaginal bruising consistent with forced penetration; etc. But the jury acquitted. When asked why, most of the jurors said, “Well, sure, she had all that bruising, but she didn’t have any bruising on her knees. If she had really really resisted, she should have bruising on her knees from where he had to pry them apart.” 6 months later, this boy was caught in the act of attempting to rape another 14-year old girl on school grounds. (BTW, other “evidence” used by the defense in this particular case was such “horrendous” facts about the victim as: her mother was on welfare.)
That’s my point. There are things that a trained person can look for to distinguish between forced penetration and “rough sex.”
Yes, maybe this will teach me not to reply on the fly to a blog that doesn’t have an edit comment function. I realised your point after I’d hit post.
But still, surely these signs will only be present if the force is direct, rather than being some other form of coercion. If the rapist threatens the victim into complying, the signs might not be there, but it’s still rape. Otherwise we’re looking at the “she didn’t fight him off with every fibre of her being so it’s not rape” idea, rather like what you describe in your example.
Good for you, sheezlebub. But do I detect a note of doubt in your post? I can assure you, it’s true.
There was no doubt in my post. Trust me, if I had doubts there wouldn’t be a note, there’d be a full symphony.
Go away, spamming poopyhead!!!
This whole case is bs. The trick is lying, just trying to get some attention. Any woman with a vagina will know what I mean. Have you seen Kobe? Does he look like he has to force himself on any female? The woman needs to shut herself up, because it all comes down to racism anyway. If Kobe was whte this case would not have been nearly so big, and people would have been reacting SO differently.
Real, my ass. Troll elsewhere.
Although Colorado’s rape laws are designed to protect alleged victims from publicity and to keep the victim’s sex life from being publicized
Er, not exactly. “Rape shield laws” are evidentiary rules, meant to prevent judges from ruling case-by-case on which details of the accuser’s sex life or behavior are relevant.
kobe Bryant iscool
Interesting thread…I, for one, don’t believe that Kobe committed rape…and while I agree that he was an absolute cad for committing adultery on his wife…his accuser was a young star-crossed woman who saw an opportunity and acted on it…just think about it…”if I could get naked with Kobe Bryant, what a feather in my cap…or even better…I could accuse him of rape and get a big hunk of his cash”…why do I think this, you may wonder?
I live in the city where the alleged victim is from…I am acquainted with the parents of the accuser’s best friend…my husband and I had dinner with this couple last August, just a few weeks after the story broke…we discussed this case at length and the father told us of how he had asked his daughter in the past (and well before this story made headlines, I might add) to please distance herself from the accuser…that this girl was bad news and he didn’t want his daughter to get caught up in something serious…when the daughter refused, Dad demanded it…once this story broke, the daughter did, in fact, take Dad’s advice…the accuser is apparently of, for lack of a better word, “questionable” values at best…this is coming from the father of the accuser’s (former) best friend.
So, was there sexual contact between Kobe and the accuser? Probably. Was it consensual? Absolutely. Should the accuser’s somewhat coloured (no pun intended) past be scrutinized by the courts? In this case, yes. Because you can bet that the guys she’s had sex with before (or subsequently) weren’t of the stature of a Kobe Bryant…oh, and apparently, the accuser was photographed here in my city at a local nightspot not a month after her “rape”…hanging all over, physically groping and kissing a young man in public…one who had a girlfriend who dumped him once the pics were made public in a local newspaper…not exactly the natural instincts or actions of a true “rape” victim.
I don’t know if this person was raped or not. I don’t like anyone who claims to know. Despite all the stuff you added – none of which has anything to do with this question – you don’t know, either.
I will say that “the natural instincts or actions of a true ‘rape’ victim” is bullshit. Here’s the truth: there is no one “true” way all rape victims act after-the-fact. Rape victims are all individuals, and they have different reactions.
Here’s more of the truth, TC: Just because a father of a friend of yours calls a girl “bad news” doesn’t prove that she wasn’t raped. Just because the alleged rapist is wealthy, doesn’t prove she wasn’t raped. Just because you don’t approve of her sexual attitude or behavior, doesn’t prove she wasn’t raped.
She was raped – or not – based on whether or not force or threat of force or drugs were used to force her to have sex against her will, on the particular occasion we’re discussing. That’s the ONLY thing that determines if she was raped or not.
Everything else you brought up is… and I’m having to discipline myself to avoid using strong language here… irrelevant.
So let me get this straight, TC–
A friend of yours repeats rumors about this woman and calls her “bad news”, and you decide that she couldn’t have been raped. (What if someone decided that you were bad news?)
Your friend decides that this girl has “questionable values” (huh? who decides these things?) and you decide that the sex in that hotel room was abseloutely consensual. (What if someone told everyone they knew that you had “questionable values”?)
The plantiff “apparently” had a picture taken of her groping and kissing a guy, and that means that she couldn’t have been raped since you have decided that she’s not acting the way “real” rape survivors act.
Give me a break. Rape survivors act in very different ways after an attack. They don’t all go catatonic and rock back and forth in corners. Some people push the trauma away until years after the attack.
I don’t know if she was raped or not. But I will wait for the facts to decide, not rumors, supposition, and ignorance, thankyouverymuch.
You know, back when I was in high school, one of my friend’s parents started telling other parents that I was “bad news” — they went so far as to tell them I was “on drugs” and that I had gotten this other kid “on drugs” and that was the reason that other kid attempted suicide.
Fortunately for me, I was living with my best friend and her parents at the time, and her father happened to hear about these rumors at a parent’s meeting at school. He got pissed, and starting vehemently correcting these rumors. He told them that he knew me, and knew that these things weren’t true. I’ll always be grateful to him for that. But there were still always a few parents who didn’t want their kids hanging out with me because they said I was “bad news.”
The plantiff “apparently” had a picture taken of her groping and kissing a guy
Small point: she’s the accuser, not the plaintiff; this is a criminal case, People v. Bryant, not Accuser’s Name v. Bryant.
And yes, it’s ridiculous to suggest a ‘true’ rape victim would have hied herself to a nunnery a month after the attack.
Guide to how a true rape victim acts.
She will flee all forms of sexual contact on the grounds that they cause flashbacks. Or she will welcome sexual contact in an attempt to desensitise herself. Or anything in between.
She will cover herself up and hide all references to her sexuality out of shame. Or she will flaunt her sexuality like she never dared before because she tried hiding it and look where it got her. Or anything in between.
She will avoid all men because she can no longer trust them. Or she will seek out the company of men in an attempt to convince herself they’re not all bad. Or anything in between.
Yeah, it’s all down here in this handy Guide. Now available in postcard size – check it after you’ve been raped to make sure you don’t inadvertently do something that your attacker’s defence lawyers can use against you.
Begone, spamming poopyheads!!!!
And now due to the publicity, this alleged rapist will not have to confront the consequences of his crime. What an f’ed up society we live in. Kobe can vow to find the real rapist. Maybe he can get OJ to help him. Sports stars such as Kobe are just reflections of the vulgar and immoral society we have devolved to.
I love it when a bunch of short white Italians beat the crap out of our NBA “stars” in a practice.
Why doesn’t someone invest some money and start a real basketball team: They could probably get the Italians cheap.
The woman who accused Kobe Bryant of rape will have to discuss with prosecutors whether she will go ahead with the criminal case because she fears the release of court documents about her sex life threatens her chance of getting a fair hearing, one of her lawyers said today.
Kobe is innocent until proven guilty. A woman cannot hide behind rape sheild laws simply to avoid credibility of her allegations. If her allegations are true, the Kobe should do time. I have not seen any evidence that Kobe is guilty and our legal system provides that he is innocent until proven guilty. The evidence does show that this girl has a bad sexual reputation in her community and that she has other psychological problems. This doesn’t automatically make kobe guilty. I feel sorry for any one of you that assumes he is guilty if you ever find yourself in a similar situation where you are accused of breaking some law when in fact you are innocent. Purchase your Boycott Colorado t-shirt today in lakers colors!
email me at tbellanca@yahoo.com $10.00 per shirt.
Sheelzebub wrote:
Also, I don’t see how it’s constructive to pull out the tired old “she wants his money” routine. Not only does that theory reek of mothballs, the plantiff has stated repeatedly that she has no intention of suing Bryant.
The accuser was now sued Bryant in a civil case, not even waiting until her criminal trial begins (in a few weeks).
Now, I am not one to pull out the tired “she wants his money” routine. I have no idea if she was raped or not, and am damned glad I won’t be sitting on the jury that has to decide.
I am one, however, to pull out the “credibility is important at a he said/she said trial, and this certainly won’t help” routine.
Talk Left and commenters note that the accuser had been seeking advice on filing a civil suit for over a year, and theorizes that the criminal case is essentially over now that the lead witness has helped shoot her credibility in the foot.
Civil trials don’t have the “speedy trial” requirement that criminal trials do. I suspect the accuser is assuming Bryant will be acquitted, and figures there’s no point in waiting.
Hi, guys! First of all QUADRATIC K.B. is not a rapist and I believe that he is completely innocent. In other case if he’s guilty that would be a huge shock for NBA & its fans including me, becouse one of league key player would be missing and with that the number of NBA viewers will fall down. Imagine the NBA without Kobe!! We all here know that all over the world (fans)including me of course, choosed K.Brynat as their idol.I think that the girl saw her chance for popularity and she used that, first she had sex with Kobe than she claim that she was raped by him (Kobe). And I totally agree with
Amanda why would she hold back from a basketball star
Hi, guys! First of all QUADRATIC K.B. is not a rapist and I believe that he is completely innocent. In other case if he’s guilty that would be a huge shock for NBA & its fans including me, becouse one of league key player would be missing and with that the number of NBA viewers will fall down. Imagine the NBA without Kobe!! We all here know that all over the world (fans)including me of course, choosed K.Brynat as their idol.I think that the girl saw her chance for popularity and she used that, first she had sex with Kobe than she claim that she was raped by him (Kobe). And I totally agree with
Amanda why would she hold back from a basketball star
P.S . If enybody wants to talk about Kobe here is my E mail Laki_8@.yahoo.com
Let’s see. . .the court “accidentally” releases her private medical records three times, and we’re wondering why she no longer wants to testify? She’s pulling out of the case. I can’t blame her. Her life has been threatened, her family has been stalked, and the defense has thrown out rumor fodder such as “We’d like to investigate the claims that [the accuser] may write a book” (knowing full well that people will latch onto “oh, she’s writing a book!” instead of realizing “Oh, that’s a rumor and the defense is capitalizing on it.”
I don’t know if she was raped (Tbellanca, discussing the rape sheild law and criticizing misogynist attitudes does not mean I assume Bryant is guilty. Stop putting words into people’s mouths), but if I was and I had to deal with all the crap I’ve seen in this case, I’d be sorely tempted to get some measure of justice. If it was through a civil suit, so be it.
Finally, Tbellanca–a spiteful ex-boyfriend or ex-friend and a town full of small-minded, puritanical gossips can ruin someone’s sexual reputation by spreading rumors. I suggest that *you* not judge as it could happen to *you* or someone you know–and then God help you if you were raped. And let’s hope you never saw a therapist for depression, grief, stress, or anything else. So much for your credibility–your story wouldn’t ring true in such a case. You can wait for all the pertinent facts to come in without participating in a slut hunt.
Finally, for all the hysteria about the accuser being out for money, I see little indignation about the souveniers being hawked over this case. Free Kobe T-shirts and thongs (he hasn’t even been in jail, he *is* free), and now a spammer using this thread to advertise $10 Kobe Bryant T-Shirts. If you get any orders for those shirt, Tbellanca, I suggest you send the accuser a thank-you note for the wonderful marketing opportunity she gave you to pimp Bryant.
I believe that Kobe Bryant is Innocent. I am one of Kobe Bryant #1 Fans. Kobe is a very sweet person and I just can’t imagine him doing such things. Kobe Bryant has been my best Basketball player since 1997.Kobe was my Motivation to get up and start playing ball. This year I graduated from High School and my Basketball team went all the way. I want to thank Kobe Bryant for that.Thanks man. I am always gonna be their for Kobe, even during his bad times.I do belive now that all of this is finish my team will sit back in thier chair where they belong as CHAMPIONS….
the court “accidentally” releases her private medical records three time
Yeah, one wonders what the prosecutor’s office is going to do about that. If anything. Three ‘accidental’ leaks? C’mon.
Ooh, I get to follow sleeping-pill spam.
Also, did anyone else wonder about the accuser’s credibility when you heard she showed up for the rape exam with underwear stained with another mans semen? Do you think that maybe she invited this line of attack questioning when she did that?
The way it was leaked/reported was sure designed to make it look like she was slutty for showing up with semen in her panties. But from what I’ve read, semen can remain in fabric through several washings, and the semen in her panties was degraded in a way consistent with that.
From an evidentiary standpoint, bringing in evidence of the presence of another man’s semen is allowable even under rape shield laws if it’s done to show that someone else could have caused the injuries and the rape. I’m sure once the report showed the presence of another person’s semen, the defense jumped on it. The prosecution would have had to have then rebutted the charge and brought in experts to testify about the meaning of the rape kit evidence, or brought in the other guy.
The leaks of the accuser’s name and medical records FROM THE COURT are just inexcusable. The accuser was vilified in the press, both with and without help from the defense. This kind of tactic from the defense has a couple of purposes: one, to make life difficult for the accuser, and two, to poison the jury pool. Get people thinking that maybe she’s a mentally unstable slut who just wanted to bang a basketball star, and saturate the local media with it, and you’ll have a hard time getting an impartial jury.
Someone way upthread mentioned the whole reputation thing, in the context of showing that the accuser isn’t the type of person to engage in consensual sex of X type. That’s actually a really stupid move for a prosecutor, because it opens the door to all kinds of questioning about her sexual history, exactly the kind of thing you want to keep out. And most court systems in the US don’t allow that kind of testimony if it’s to show that, well, you’ve done it before, so you’re likely to have done it again. It *is* allowable in certain circumstances, such as to show that the person has had notice of something, or that the behavior was so regular as to have become routine. But that’s generally highly irrelevant in a rape case.
As to the accuser not wanting to go forward with the criminal case but filing a civil case. Two things she can get in a civil case that she can’t in the criminal case, aside from damages: 1) a lower standard of proof; and 2) the defendant can be forced to testify and be subject to cross-examination. The discovery rules are also broader as far as the defendant goes, so she can have him deposed before trial and force him to turn over documentary evidence and make admissions that the prosecutors couldn’t in the criminal trial.
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