A Glass Shield

After spouting about the disastrous conclusion to the Kobe Bryant trial to my friends and housemates for a couple days now, I decided it would be worthwhile to back up my wild-eyed, teeth-gnashing, fear-inspiring orations with some actual knowledge of Rape Shield Laws.

Before I get into the policy wonk discussion, though, let me make something clear. I don't claim to know whether or not Bryant is guilty or innocent of the rape charges. That, my friends, is not the point. The point is that the woman who filed the charges should have been guaranteed fair treatment under Colorado's Rape Shield Law, which entitles her to some privacy and protection regarding unearthing her past sexual history.

Due to some reprehensible failings of the judicial system, the accuser was not, in fact, protected. Her name and past sexual history were not only discussed in court, but they were also "inadvertently" released to the media and made fodder for anyone who damn well wanted to discuss it.

This unconscionable behavior led one rape victim advocate to state, "I feel like we have stepped back in time 30 years, back to a time when confidentiality was not guaranteed and when the victim's sex life was up for scrutiny."

Indeed, a 2003 summary of Rape Shield Laws by the American Prosecutors Research Institute indicates that, on the face of it, Colorado's law wasn't all bad. According to the actual text of Colorado's law, (also courtesy of an APRI compilation of Rape Shield Laws):

(1) Evidence of specific instances of the victim's or a witness' prior or subsequent sexual conduct, opinion evidence of the victim's or a witness' sexual conduct, and reputation evidence of the victim's or a witness' sexual conduct shall be presumed to be irrelevant except:
(a) Evidence of the victim's or witness' prior or subsequent sexual conduct with the actor;
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease, or any similar evidence of sexual intercourse offered for the purpose of showing that the act or acts charged were or were not committed by the defendant.

While we can get into debates over how point (a) creates complications for women who wish to make rape charges against their husbands, I don't want to debate that point now. What's really shocking to me, and what completes the full mocking of the law by the defense attorneys, is that Bryant's accuser was forced to discuss her sexual history during a period that covered up to a year before she said she was raped. Obviously, any of those sexual encounters would not have been relevant to semen or other evidence of sexual intercourse from the day of or the day after the alleged rape. And, as far as I know, the woman was not claiming that the alleged rape resulted in a pregnancy or an STD, so what the f**k?

And let's not even get into how her name was "leaked" and how she will forever be known as dear Kobe's accuser.

So this is what an apparently "strong" rape shield law will get you - the opportunity to be internationally known as the woman who accused a beloved, talented athlete, as well as the - lucky you! - chance to describe in detail every sexual encounter you've had in the past year. I can't even imagine how rape victims who live in, say, Kentucky and Louisiana, feel. Their states' laws allow evidence to be regarded as admissible if "the probative value of the evidence outweighs the danger of unfair prejudice." What sweet language to describe a process in which, more likely than not, a man is going to decide the balance between "probative value" and "unfair prejudice."

If you don't believe there's an institutional bias against women in the legal system, then I strongly suggest you read Martha Chamallas' Introduction to Feminist Legal Theory. Or, just pick up your local newspaper and read about the outcome of the Bryant trial.

Or about the already nauseating discussions taking place in the media about the new accusations against William Kennedy Smith. Yeah, you just try to explain to a patriarchal legal system how you can be raped by a man and then have a consensual sexual relationship with him following the rape. I'm not admitting there's an absolute logic in the actions of a woman who would behave in such a way, but who are we to decide what is regarded as logical to any other person? And, as far as I understand it, the legal system isn't the arbiter of who's-more-logical-in-their-behavior award contests. Courts are supposed to uphold the law, and it is clear that the Colorado courts failed miserably. Don't hold your breath for Illinois' to perform any better.