Excellent piece in the NY Times by Dahlia Lithwick on Rape Shield laws and the Kobe Bryant case:
This well-intentioned reform in our rape laws has led to two unappealing alternatives: Either the defendant’s legal presumption of innocence is flipped on its head, since rape shield laws unambiguously deny him access to potentially exculpatory evidence, or – as a practical matter – the woman’s sexual history goes on trial regardless, permitting humiliating public scrutiny often likened to a second rape.
With his right to a fair trial and her right to be spared a second assault on a collision course, the role of the media becomes absolutely lethal. In the Bryant case, by insisting on its constitutional right to act as watchdog, the press gained access to the most lurid details of the accuser’s intimate life. Consequently, high-profile rape trials allow the media to do far more damage than rape shield laws ever tried to mitigate.
I don’t know much about the specifics in the case, but I do know one thing. The fact that the accuser may have had sex with someone else after allegedly being raped by Kobe Bryant and before reporting the rape proves nothing. While it does look damning, it is common knowledge that rape victims are oten so traumatized by the rape that they try to ‘egt on’ with their life and ‘act normal.’ It is not unheard of for women to be raped, go home, have consexual sex with their husband/boyfriend, and days later break down and finally report the alleged rape.
There are no winners in rape cases.
shark
True enough, but I don’t blame Kobe for trying to make that case. He’s entitled (or should be) to do whatever he has to do to stay out of jail, and if that means hurting someone’s feelings again, too bad
McCujo
I wrote a paper in my journalistic ethics class about this very issue. My professor was a woman and a liberal and didn’t like my conclusions. Please comment on my solution to the issue.
I concluded that if you are going to withhold the identity of the alleged victim, then you must also withhold the identity of the accused. After the trial, the matter will be a part of the public record and if the there is a conviction, then the victim’s identity would remain secret. If the accused is found not guilty, then niether the accuser or accused identities would be revealed. But should the accuser make another claim of rape or sexual assault, the details of the previous trial (except for the accusers identity) would be public knowledge. I argued that if the alleged victim needs protection, then so does the accused (especially the accused in a system designed with a “presumption of innocence”). Being wrongly accused as a sex offender is more damaging to one’s reputation (not damage to mind or body) than being a victim of those crimes. The victim will generally have a lot of sympathy, while there is almost never any sympathy for someone accused of sexual assault, even if they are found to be innocent of the charge. So keeping the identities of both parties secret is the fairest way to be impartial and fair to both parties.
Needless to say, my professor gave me a C-, and explained that I was given a low score because I was being insensitive (of course, she couldn’t refute the logic of my argument). So when I see these cases come up, I always remember that paper I wrote and the complete disregard for logic and fairness that my professor maintained.
tom scott
Yeah John, but does that give her a right to lie about it?
McCujo, I found your thoughts provocative but I don’t think a secret could ever be kept. From police to prosecutors to jury, there are just too many people in the know to keep their mouths shut.
M. Scott Eiland
Thoughtful column. Lithwick is certainly to my left politically, but she’s sharp as a tack and knows the law. Since she’s sitting in for professional dimwit MoDo while she’s off on vacation for the next month, it’s a huge net plus for the NYT.