{"id":342,"date":"2003-08-20T14:12:34","date_gmt":"2003-08-20T22:12:34","guid":{"rendered":"http:\/\/www.amptoons.com\/blog\/archives\/2003\/08\/20\/rape-shield-laws-and-the-kobe-bryant-case\/"},"modified":"2003-08-20T14:12:34","modified_gmt":"2003-08-20T22:12:34","slug":"rape-shield-laws-and-the-kobe-bryant-case","status":"publish","type":"post","link":"https:\/\/amptoons.com\/blog\/?p=342","title":{"rendered":"Rape Shield Laws and the Kobe Bryant Case"},"content":{"rendered":"

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<\/em><\/a>, claims that Colorado’s “stringent” rape shield laws are an “impediment to fair trials.”<\/p>\n

But what does Colorado’s rape shield law<\/a> 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.<\/p>\n

    \n
  1. “Evidence of the victim’s prior or subsequent sexual conduct with the” defendant is admissible.\n
  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<\/i> got her pregnant, that’s admissible).\n
  3. Any other evidence whatsoever<\/em> is admissible, as long as the defense attorney can convince a judge that the evidence is relevant.<\/ol>\n

    So this is the big complaint about rape shield laws – defense attorneys are limited to presenting evidence that’s actually relevant to the case<\/em>. 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.<\/p>\n

    Is this really such a loss to fairness and justice?<\/p>\n

    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”?<\/p>\n

    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).<\/p>\n

    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<\/em> be able to base their defense on the character of the alleged victim; and that rape shield laws prevent defendants from doing this.<\/p>\n

    But in what way could “the theory that [alleged victims] act in conformity with their character” be relevant?<\/p>\n

      \n
    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<\/a>, “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.”\n
    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.)\n

      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<\/i> 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).<\/ol>\n

      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<\/em>. 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.<\/p>\n

      Tarlow continues:<\/p>\n

      Most rape cases that turn on whether a sex act was consensual, as the Bryant case certainly will, ultimately come down to a “he said\/she said” contest between the accused and the accuser. But how can a jury accurately judge the credibility of the two parties if the accused has been presented in the worst possible light while the accuser is enshrouded in a cloak of purity?<\/div>\n

      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<\/i> 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.<\/p>\n

      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.<\/p>\n

      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?”)<\/p>\n

      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.<\/p>\n

      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.<\/p>\n

      (Link via TalkLeft<\/a>.)<\/p>\n

      (Updated to add the quote from Michael Dorf)..<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

      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 … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[96],"tags":[],"class_list":["post-342","post","type-post","status-publish","format-standard","hentry","category-rape-intimate-violence-related-issues"],"_links":{"self":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/342","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=342"}],"version-history":[{"count":0,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=\/wp\/v2\/posts\/342\/revisions"}],"wp:attachment":[{"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=342"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=342"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/amptoons.com\/blog\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=342"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}