Bryant Case Tests Limits of 'Rape Shield Laws' ; the Klieg-Light Trial Will Help Determine How Much of Alleged Victim's Past Can Be Scrutinized

By Seth Stern writer of the Christian Science Monitor | The Christian Science Monitor, October 22, 2003 | Go to article overview

Bryant Case Tests Limits of 'Rape Shield Laws' ; the Klieg-Light Trial Will Help Determine How Much of Alleged Victim's Past Can Be Scrutinized


Seth Stern writer of the Christian Science Monitor, The Christian Science Monitor


As the rape case against basketball star Kobe Bryant proceeds, expect to see the alleged victim's past on trial too - both inside and outside the courtroom.

A Colorado judge allowed the case to go forward Monday one week after Mr. Bryant's defense attorneys introduced lurid evidence of the accuser's other sexual experiences at a preliminary hearing.

Like most states, Colorado has a "rape shield law" that generally protects victims from disclosures about their sexual conduct or reputation before or after an alleged assault. But the Colorado law includes two exceptions: evidence about prior sexual conduct with the defendant and evidence that might show the acts charged were not committed by the defendant.

Now, in the highest-profile criminal prosecution since O.J. Simpson's trial a decade ago, the balance between a defendant's right to a fair trial and an accuser's rights under the rape shield law will be tested.

The disclosures already made in the Bryant case show that rape shield laws don't completely prevent allusions to the sexual history of accusers. Advocates of victims' rights say such disclosures show precisely why rape shield laws are necessary, arguing that a defendant's guilt or innocence should related to his or her own behavior, not that of the alleged victim.

"[The rape shield laws are] not complete protection," says Paul Campos, a law professor at the University of Colorado. "They give rape victims some protection against being blindsided by the introduction of information about their sexual past, but it's far from complete protection by any means."

Defense strategy

Defense attorneys continue to look for ways to circumvent protections of rape shield laws, says Claudia Bayliff, a Niwot, Colo., attorney affiliated with the NOW Legal Defense and Education Fund. "The goal is make the victim appear promiscuous and as a result appear less likely to tell the truth," she says.

Defendants have good reason to want to provide jurors with as much information as possible about victims' sex lives. Social- science research suggests jurors are as likely to assess defendants' guilt based on their view of victims' virtue as based on physical evidence presented, says David Bryden, a University of Minnesota law professor.

Jurors consider whether a victim resisted, complained promptly, or had a good reputation. "They do give weight to whether the victim behaved in a circumspect way or in a careless way and whether she appears to be sexually restrained or unrestrained," says Mr. …

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