Rape and Rights

A judge’s decision to allow testimony in the Kobe Bryant sexual assault case about his accuser’s other sexual contacts is a fair call -- yet it has rape victim advocates appropriately alarmed. As they fear, it may unnerve rape victims and embolden defense lawyers, who have been restrained by “rape shield” laws that put victims’ sex lives off limits. But it does not represent a judicial rollback of victims’ rights, just the difficulty of divining truth in a bewildering era of shifting sexual mores.

Both sides in the Bryant case agree that the basketball star had sex with a 19-year-old hotel employee in his room at a Colorado resort. Bryant says it was consensual; the young woman and the state of Colorado say it was rape. Prosecutors cite vaginal abrasions to prove that sex was forced. The defense, armed with DNA findings, contends that she could have been injured by sex with someone else. The judge agreed that the information is central enough to Bryant’s not-guilty plea that evidence of the woman’s sexual activities before and after their encounter ought to be put to the jury.

The Best Call, This Time

The ruling undermines the prosecution in this case, but its larger import is not so clear. It does not take us back to the day when the type of panties a woman was wearing could be used to discount the claim of rape. Other judges have made similar findings when the role of other sex partners seemed relevant.

It is up to jurors to decide how much weight to give that evidence. Social science research suggests that they remain as likely to assess a defendant’s guilt based on their view of the victim’s virtue as on the physical evidence. But how do jurors assign virtue in an era when sexual freedom seems to have no boundaries, when group sex and “hooking up” -- casual sex between virtual strangers -- are not the norm but common enough to have lost shock value?

In Orange County, jurors -- who had been asked on jury questionnaires whether they used sex toys, watched porno movies or were “sexually adventurous” -- couldn’t agree on whether a 16-year-old girl, videotaped lying motionless while three young men took turns having sex with her, poking and penetrating her with a juice bottle, a pool cue and a lighted cigarette, was a rape victim drugged unconscious or a willing participant playing porn star. After all, she had been known to use drugs and sleep around, defense lawyers said. The jury deadlocked a month ago, divided by conflicting views of her credibility.

Issue of ‘Victim’ Label

In a recent case at UCLA, three high school football players on a campus tour talked their way into the dorm room of a freshman girl, then had sex with her, one after the other. She testified at their rape trial that she told them no repeatedly but didn’t resist because she was scared. Their lawyers called the sex consensual, said she flirted and let them unbutton her pants. The jury found two of the boys not guilty and deadlocked on the other. A 23-year-old woman on the jury explained it this way: “It’s not so far-fetched to me that today a female would go and have consensual sex with three men after 10 minutes of meeting them.... I just didn’t believe her.”

The scenario in the Bryant case suggests a similar battle. Details of the woman’s past -- stories of suicide attempts and sexual escapades -- have already been leaked to the media, and more is likely to emerge during trial. And the judge, struggling to be fair to both sides, has ruled that the woman cannot be referred to as “victim” because that might bias the jury against Bryant.

The judge’s decisions seem prudent in the unemotional framework of the law. But in the real world, people bring their own prejudices and social values into the jury box. The urge to put the accuser on trial still lurks behind 30 years of rape law reform.