Special issues raised by rape trials

Fordham Law Review

Volumn 76, Issue 3, 2007, Pages 1585-1608

  Orenstein, Aviva ^a  

^a INDIANA UNIVERSITY   (United States)

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EID: 39449113937     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (158)

1. Given the numerous evidentiary questions rape trials raise, including issues of relevance, character evidence, cross-examination of witnesses, privilege, scientific evidence, and psychological expert testimony, a typical rape trial could serve as an evidence primer.
2. The term rape is defined differently by different jurisdictions, sometimes limited to penile penetration. See, e.g., Ind. Code § 35-42-4-1 (2007). My general reference is intended to encompass all sexual assault and sexually deviant conduct against adult women. Men, particularly those in prison, also are victims of rape and sexual assault.
3. See generally Adrian W. Coxell & Michael B. King, Male Victims of Rape and Sexual Abuse, 11 Sexual & Marital Therapy 297 (1996) (noting that men who were sexually assaulted displayed many of the same emotional and mental health reactions as female victims). However, most rape victims are women assaulted by men, and I will rely on that template.
4. See Patricia Tjaden & Nancy Thoennes, Nat'l Inst. of Justice, Extent, Nature, and Consequences of Rape Victimization: Findings for the National Violence Against Women Survey 7 (2006) (17.6% of surveyed women and 3% of surveyed men were raped at some time in their lives);
5. cf. Catharine MacKinnon, Reflections on Sex Equality Under Law, 100 Yale L.J. 1281, 1306 (1991) ("Sexual assault cannot be treated as gender neutral because sexual assault is not gender neutral."). Another potentially controversial issue is the use of the term "victim." Some prefer the term "survivor" to emphasize women's agency. Some prefer the term "complainant" or "accuser" to emphasize the presumption of innocence. I will generally stick with victim, which emphasizes the criminality of sexual assault. That these terms are so fraught with uncertainty and political implication provides further evidence of the legal and cultural minefield that rape trials traverse.
6. Although this essay will focus on selected evidentiary and ethical constraints on defense attorneys, is it worth noting that prosecutors are not immune from murky ethical problems raised by rape trials. One major difference for prosecutors is that they, unlike defense attorneys, have an ethical duty to seek justice. See Standards for Criminal Justice: Prosecution Function and Defense Function Standard 3-1.2(b)-(c) (3d ed. 1993);
7. see also Robert P. Mosteller, The Duke Lacrosse Case, Innocence, and False Identifications: A Fundamental Failure to "Do Justice," 76 Fordham L. Rev. 1337 (2007) (discussing the prosecutor's ethical duty to do justice in the context of the Duke lacrosse case). For instance, prosecutors sometimes struggle with prosecutions that arguably lead to unjust results, even though technically the accused has violated the law. The issue of statutory rape is particularly interesting as an example of a potentially unjust rape prosecution because it involves questions of women's agency. Designed to protect underage girls from predatory older sexual partners, statutory rape laws sometimes include less culpable conduct that reflects outdated notions of women's need to be saved from their own sexual impulses.
8. See Michelle Oberman, Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape, 48 Buff. L. Rev. 703, 721-22 (2000) (arguing that especially for teenage girls there is "gray area between consent and rape");
9. Frances Olsen, Statutory Rape: A Feminist Critique of Rights Analysis, 63 Tex. L. Rev. 387, 401-10 (1984) (explaining the conundrum for feminists regarding statutory rape and laying out the arguments for the protections statutory rape laws afford women versus the considerations regarding rights of sexual choice and rejection of a sexual double standard).
10. The Kobe Bryant case has served as a template for other legal scholarship. See, e.g., Michelle J. Anderson, Time to Reform Rape Shield Laws: Kobe Bryant Case Highlights Holes in the Armor, Crim. Just., Summer 2004, at 14 (illustrating the need for reform of rape shield laws);
11. see also Andrew E. Taslitz, Willfully Blinded: On Date Rape and Self-Deception, 28 Harv. J. L. & Gender 381 (2005) (using the facts of the Bryant case to examine the issue of the perpetrator's self-deception and the issue of consent).
12. See, e.g., Julie Horney & Cassia Spohn, Rape Law Reform and Instrumental Change in Six Urban Jurisdictions, 25 Law & Soc'y Rev. 117, 120 (1991). Not all the reforms around rape involve changes in the law. As part of the feminist attempt to make reporting easier, reformers have successfully lobbied for better training of police and hospital staff as well as the creation of rape crisis centers to provide support and counseling.
13. See generally Janice Du Mont, Karen-Lee Miller & Terri L. Myhr, The Role of "Real Rape " and "Real Victim " Stereotypes in the Police Reporting Practices of Sexually Assaulted Women, 9 Violence Against Women 466 (2003).
14. Andrew E. Taslitz, Rape and the Culture of the Courtroom 106 (1999) ("A lawyer who fails to appeal to race or gender bias will start losing cases if biased appeals work with juries.").
15. Rape myths are empirically untrue, but nevertheless firmly held notions about the incidence and nature of rape. Rape myths are defined as "prejudicial, stereotyped, or false beliefs about rape, rape victims, and rapists." See Morrison Torrey, When Will We Be Believed?: Rape Myths and the Idea of a Fair Trial in Rape Prosecutions, 24 U.C. Davis L. Rev. 1013, 1017-18 (1991)
16. (citing the work of psychologist Martha R. Burt). See generally Aviva Orenstein, No Bad Men!: A Feminist Analysis of Character Evidence in Rape Trials, 49 Hastings L.J. 663 (1998).
17. Potiphar's wife accuses Joseph of rape when he spurns her advances. Genesis 39:6-19. A black man is falsely accused of attempted rape by a white woman embarrassed by her attraction to him. Harper Lee, To Kill a Mockingbird (1960).
18. Susan Estrich, Real Rape (1987).
19. The stereotype persists even though only 16.7% of all female victims were raped by strangers. See Lisa Frohmann, Convictability and Discordant Locales: Reproducing Race, Class, and Gender Ideologies in Prosecutorial Decisionmaking, 31 Law & Soc'y Rev. 531, 536, 538-39 (1997) (documenting a prosecutor's fear that women in bad neighborhoods out late at night would be considered prostitutes or drug clientele and not "real" rape victims);
20. Tjaden and Thoennes, supra note 2, at 22.
21. Frohmann, supra note 10, at 5 51.
22. For instance, the victim in the Bryant case was photographed by tabloid newspapers "dirty" dancing, and the headline read "Kobe's Accuser Goes Wild." This image was found on one of the many pages collecting photos and private information about the victim. Katelyn (Kate) Kristine Faber Images, http://www.francesfarmersrevenge.com/stuff/images1/katefaber/6.htm (last visited October 29, 2007).
23. As Professor Andrew Taslitz observed less crudely than I do here, as in the fairy tale The Little Mermaid, a woman could have a voice or a vagina, but not both. Taslitz, supra note 6, at 20. Taslitz analyzes the catch-22 that the victim faces-if she speaks up she will face skepticism, if she remains silent, then her later speech will not be credible either.
24. Id. at 24.
25. For an extreme example of the use of rape as a tool of suppression and reinforcement of hierarchy see Lisa Cardyn, Sexualized Racism/Gendered Violence: Outraging the Body Politic in the Reconstruction South, 100 Mich. L. Rev. 675 (2002) (describing the Klan's use of violent sex as a deliberate tool of social control).
26. This is a reference to Lord Matthew Hale's famous and oft-repeated jury instruction regarding rape: "[I]t must be remembered, that it is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, tho never so innocent." 1 Matthew Hale, The History of the Pleas of the Crown 634 (Philadelphia, Robert H. Small 1847).
27. See John Henry Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 924(a) (3d ed. 1940) (recommending that all rape complainants undergo mandatory psychological examinations).
28. For instance, in the Duke rape case, see infra note 20-21 and accompanying text, the prosecutor was sanctioned and resigned for making improper pretrial statements about the defendants' guilt and withholding exculpatory evidence. Duff Wilson, Facing Sanction, Duke Prosecutor Says He'Il Resign, N.Y. Times, June 16, 2007, at A1.
29. See, e.g., Kobe Bryant Accuser Kate Faber Sex, Lies Drugs and Alcohol, http://www.fratpack.com/article-main.php?id=36 (last visited Oct. 29, 2007) ("The more we dug into Kate Faber's past, the more we found that made us think Kobe Bryant was actually the victim in the case.").
30. I write this from the vantage point of a white woman, conscious of the privilege of whiteness and aware that people of color may not share my middle-class comfort that I will not be falsely accused of violent crimes or crimes against property, "tho never so innocent."
31. See Taslitz, supra note 6, at 28-31.
32. Duff Wilson & Jonathan D. Glater, Prosecutor's Silence on Duke Rape Case Leaves Public with Plenty of Questions, N.Y. Times, June 12, 2006, at A13.
33. See generally Mosteller, supra note 3 (providing an extensive analysis of the Duke case).
34. Duff Wilson, Prosecutor in Duke Case Is Suspended, N.Y. Times, June 20, 2007, at A13.
35. See Taslitz, supra note 6, at 15 (discussing the jurors' need for narrative coherence and narrative fidelity).
36. See generally Doron Menashe & Mutai E. Shamash, The Narrative Fallacy, 3 Int'l Comment, on Evidence 1 (2005).
37. See Frohmann, supra note 10, at 536, 544 (using ethnographic data to examine prosecutors' concern about the jury's perception of a victim's poor neighborhood as a shortcut to racial and sexist stereotypes about victims).
38. Id. at 553.
39. See, e.g., Meghan Gordon, Charges in '84 Rape Case Dropped; No Retrial for Man Exonerated by DNA, Times-Picayune (New Orleans, La.), Feb. 5, 2005, at 1;
40. Man's Release After DNA Exoneration Delayed More Than 2 Years, nwi.com, Apr. 25, 2007, http://www.thetimesonline.com/articles/2007/04/25/ updates/breaking_news/doc462f67b42cf58510003803.txt
41. [hereinafter Man's Release After DNA Exoneration] (discussing the case of a man wrongfully imprisoned for thirteen years for a rape he did not commit who then spent an extra two years in jail because of an administrative error);
42. Sharon Cohen & Deborah Hastings, For 110 Inmates Freed by DNA Tests, True Freedom Remains Elusive (May 28, 2002), http://www. truthinjustice.org/truefreedom.htm ("A team of AP reporters identified 110 cases through late May in which convictions were overturned because of DNA testing. Many other cases were pending. Most of the 110 men had been convicted of rape; 24 were found guilty of rape and murder, six of murder only. In criminal cases, the evidence most often tested for genetic identification is bodily fluids, which explains the high number of rape convictions overturned.").
43. Man's Release After DNA Exoneration, supra note 25.
44. See generally Cohen & Hastings, supra note 25.
45. Rulings in rape cases are probably the type most often overturned because the physical evidence renders false accusations easier to detect than similar accusations in other cases, where such evidence may not have been present. But cf. Scott Turow, Op Ed., Still Guilty After All These Years, N.Y. Times, Apr. 8, 2007, at WK11 (discussing the case of Juan Luna who was identified by saliva on a chicken bone left at the scene years after a brutal murder in a fast-food restaurant).
46. As the Centers for Disease Control and Prevention explain, Available data greatly underestimate the true magnitude of the problem. Rape is one of the most underreported crimes. Reporting rates for rape vary across studies. The National Violence Against Women Survey (NVAWS) found that only 1 in 5 adult women (19%) reported their rapes to police (Tjaden and Thoennes 2006). Estimates of rapes reported to the police from the National Crime Victimization Study (NCVS), conducted by the Department of Justice (DOJ), vary widely from year to year, from 39% in 2002 to 54% in 2003 (DOJ 2002, DOJ 2003). Ctrs. for Disease Control and Prevention, Sexual Violence Fact Sheet, http://www.cdc.gov/ncipc/ factsheets/svfacts.htm (last visited Oct. 29, 2007); see also Callie Marie Rennison, U.S. Dep't of Justice, Rape and Sexual Assault: Reporting to Police and Medical Attention, 1992-2000, at 2 (2002), available at www.ojp.gov/bjs/pub/pdf/rsarp00.pdf (noting that 36% of rapes were reported to police during 1992-2000).
47. But see Eugene J. Kanin, False Rape Allegations, 23 Archives Sexual Behav. 81 (1994) (reviewing police files and interviewing police concerning allegations deemed false and placing the number of false allegations at 41%, citing alibi, revenge, and attention seeking as the main reasons for false reports, although over half never named a specific perpetrator). Kanin's piece involved a small sampling of 109 people from a small midwestem urban community over a nine-year period.
48. Id. The tone of the article is feminist in its rejection of rape myths and the unsupported belief that a vast majority of rape claims are false, nevertheless this one study is repeatedly cited as proof that women lie about rape.
49. Id. Kanin himself has cautioned against overextrapolating from his study and others have criticized Kanin's willingness to believe that none of the recantations were under pressure.
50. Id.;
51. see also Phillip N.S. Rumney, False Allegations of Rape, 65 Cambridge L.J. 128, 139-40 (2006).
52. See generally D. Michael Risinger, Innocents Convicted: An Empirically Justified Factual Wrongful Conviction Rate, 97 J. Crim. L. & Criminology 761, 785 (2007) (extrapolating general wrongful conviction rate from the number of exonerated capital rape cases, and quoting Richard A. Rosen that DNA exonerations provide "a random audit" of convictions generally).
53. See generally Laurie Nicole Robinson, Comment, Professional Athletes - Held to a Higher Standard and Above the Law: A Comment on High-Profile Criminal Defendants and the Need for States to Establish High-Profile Courts, 73 Ind. L.J. 1313 (1998).
54. Victim reporting is not only important for the justice system and keeping streets safe. Research indicates that the victim benefits from reporting. See Du Mont et al, supra note 5, at 467 (citing research that reporting rape has been linked to restored well-being of victims and reduced chances of future victimization).
55. This is true in other areas of criminal law that involve forensic evidence. Some have claimed the existence of a CSI effect, whereby jurors develop unrealistic expectations of forensic evidence based on various investigative television shows. See Richard Willing, "CSI Effect" Has Juries Wanting More Evidence, USA Today, Aug. 5, 2004, at 1A.
56. See generally Simon A. Cole & Rachel Dioso-Villa, CSI and Its Effects: Media, Juries, and the Burden of Proof, 41 New Eng. L. Rev. 435 (2007).
57. Frohmann, supra note 10, at 536 (internal quotation marks omitted).
58. See Deborah W. Denno, Perspectives on Disclosing Rape Victims' Names, 61 Fordham L. Rev. 1113, 1114-15 & nn.6-19 (1993) (discussing case and statutory law and citing various reporters' opinions regarding NBC's disclosure of the victim's name in the William Kennedy Smith rape trial).
59. See Daniel M. Murdock, A Compelling State Interest: Constructing a Statutory Framework for Protecting the Identity of Rape Victims, 58 Ala. L. Rev. 1177, 1188-90 & nn.114-29 (2007) (collecting and describing various state law, including Alaska, California, Connecticut, Florida, Massachusetts, New York, and Wyoming);
60. cf. Simon Kearney, Rape Payout Creates Privacy Law, Australian, Apr. 4, 2007, http://www.theaustralian.news.com.au/story/0,20867, 21501550-7582,00.html (reporting that a rape victim received a tort settlement from broadcaster that released her name).
61. As Professor Tom Lininger has observed, however, prosecutors' conviction objectives may not always be compatible with the victims' needs, and prosecutors may not "share victims' sense of urgency in protecting against disclosure of sensitive personal information." Tom Lininger, Bearing the Cross, 74 Fordham L. Rev. 1353, 1394 (2005).
62. See, e.g., Karen DeCrow, Stop Treating Victims as Pariahs; Print Names, USA Today, Apr. 4, 1990, at 8A. DeCrow, a former president of the National Organization for Women, discusses the Central Park jogger case and questions whether there it is "blatant sexism to assume that being raped (and left, bleeding, to die) is still such a disgrace for a woman that the victim's name must be concealed?"
63. Id. The article ends, "Pull off the veil of shame. Print the name."
64. Id. Students of rape myths, however, might observe that there is less shame when a victim is violently attacked, and more if she knew the accused and had been kissing him.
65. See also Geneva Overholser, Name the Accuser and the Accused, Poynter Online, July 23, 2003, http://www.poynter.org/column.asp? id=54&aid=42260 (questioning whether a decision to withhold the victim's name has prolonged the stigma, and fed the underreporting);
66. Harry Reynolds, Duke Rape Case Shows Why Censoring Names of Victims Is Bad Idea, jg-tc online, Apr. 14, 2007, http://www.jgtc.com/articles/2007/ 04/14/opinion/columns/doc462021dla06ad936949539.txt ("In slamming the door on identity, the news media only reinforces the perception that the victim should feel guilty and hide in disgrace.").
67. Bettina Arndt, In the Name of Justice, Sydney Morning Herald, Dec. 2, 2003, at 15.
68. Denno, supra note 34, at 1130;
69. see also Nat'l Victim Ctr. & Crime Victims Research and Treatment Ctr., Rape in America: A Report to the Nation (1992) [hereinafter Rape in America] (reporting the results of the National Women's Study);
70. Joan Ryan, Does a Name Empower or Stigmatize?, S.F. Chron., Aug. 1, 2003, at A29 ("If the media began printing names of victims, the number would drop even more. Here is one sure bet: No woman would ever again come forward to hold a famous man accountable for raping her.").
71. See Ryan, supra note 39 (noting that victims feel judgment and revulsion from others);
72. Robin Hindery, Debate on Naming Rape Accusers Continues, Feminist.com, Sept. 24, 2004, http://feminist.com/news/vaw29.html (noting the special challenges facing rape victims and quoting Helen Benedict that "[t]o name a rape victim is to guarantee that whenever somebody hears her name, that somebody will picture her in the act of being sexually tortured").
73. The victim's name, e-mail address, pictures, and other identifying information were easily ascertainable from the Internet. She received hate mail and credible death threats. See Sylvia Moreno, A Different Spotlight for Bryant Accuser, Wash. Post, Aug. 30, 2004, at A3. As one commentator observed: "Not naming Kobe Bryant's accuser is becoming almost pointless. It's like handing her a tiny origami umbrella to shelter her from a shower of mud."
74. Vicki Haddock, Kobe Bryant's Nameless Accuser, S.F. Chron., Aug. 22, 2004, at E1.
75. At this juncture the victim's name has been so widely disseminated that I am using it too.
76. Tom Leykis, whose show is based in Los Angeles and heard on sixty stations around the country, explained, "We're told that rape is violence, not sex, and if that's true there's no reason she should feel shame or embarrassment." See Family Violence Prevention Fund, Bryant Case Highlights Privacy Issues in Rape Cases, http://www.endabuse.org/programs/ display.php3?DocID=243 (last visited Nov. 11, 2007).
77. On CNN Leykis stated, The purpose of releasing the name of the alleged victim is to make sure that there is a fair trial in this case. By revealing the name of the accused and not the accuser, by protecting the identity of the accuser, you already put the idea in people's minds that there is a victim when this [sic] reality there may not be a victim. Live from the Headlines: Interviews with Tom Leykis, Patricia Saunders (CNN television broadcast July 23, 2003) (transcript on file with CNN.com), http://transcripts.cnn.com/ TRANSCRIPTS/0307/23/se.04.html.
78. The Globe was the first media outlet to disclose her identity. See Jeffrey Rodack, Globe Defends Decision to Publish Photo, Name of Kobe Accuser, Poynter Online, Nov. 5, 2003, http://www.poynter.org/dg.lts/ id.53516/content.content_view.htm (arguing that details about the victim's identity, dress, sex life, and mental health were widely shared in the media and quoting another journalist that "[t]he identity of the 19-year-old woman who has charged Kobe Bryant with rape was the worst-kept secret in America even before the Globe put her name and her prom picture on its cover last week").
79. As the court explained, On June 24, 2004, the court reporter mistakenly sent the transcripts of the in camera proceedings by electronic transmission to seven media entities ... via an electronic mailing list for subscribers to public proceeding transcripts in the case, instead of using only the electronic mailing list for persons authorized to receive transcripts of in camera proceedings. People v. Bryant, 94 P.3d 624, 626 (Colo. 2004). For a transcript of the unredacted court document, see Another Technical Foul-Up in Kobe Case, The Smoking Gun, http://www.thesmokinggun.com/archive/ 0728042kobe1html (last visited Nov. 11, 2007).
80. Jeffrey Toobin, legal correspondent for CNN reported on the preliminary hearing and Kobe's attorney's "slip": "As for naming the victim six times, again, it was really shocking, and Pamela Mackey kept saying, gosh, I keep making this mistake. I really apologize. You know, once, twice, maybe three times is a legitimate mistake. Six times, you really start to think that it was an act of intimidation ...." American Morning: Bryant in Court (CNN television broadcast Oct. 10, 2003) (transcript on file with CNN.com), http://transcripts.cnn.com/TRANSCRIPTS/0310/10/ltm.01.html.
81. In support of the notion that Mackey did not just "forget," she actually, according to one court observer, filed a motion requesting that Kate Faber be named or else referred to as the complainant, rather than the victim. Bryant Defense Asks that Accuser Not Be Referred to as 'Victim ' in Court, Court TV News, May 5, 2004, http://www.courttv.com/trials/Dryant/ 050504-_victim_ap.html. Clearly the issue of how to refer to Faber was on Mackey's mind.
82. Attorney Mackey apologized to the court and stated that she would write a note reminding herself not to use the victim's name. See Bryant's Lawyer Lives Up to Reputation, CNN.com, Oct. 12, 2003, http://www.cnn.com/2003/LAW/ 10/12/bryant.case.ap/index.html. Mackey's direct naming of the alleged victim was widely perceived as intentional and as an ethical lapse.
83. See, e.g., Mark Shaw, All Parties Share Blame for a Travesty of Justice, USA Today.com, Sept. 2, 2004, http://www.usatoday.com/sports/ basketball/nba/2004-09-02-shaw-analysis_x.htm ("From the moment that Bryant defense lawyer Pamela Mackey violated every semblance of judicial decorum by announcing six times the alleged victim's name during an initial court hearing, the game was on.").
84. See American Morning, supra note 46.
85. See, e.g., State v. Grossberg, 705 A.2d 608 (Del. Super. Ct. 1997) (revoking an attorney admission for violating an order limiting pretrial publicity). Mackey, a local Colorado attorney, was not arguing pro hac vice and hence revocation of that privilege did not apply to her.
86. Vizzi v. State, 501 So. 2d 613, 621 (Fla. Dist. Ct. App. 1986).
87. Id. at 615.
88. The word "undue" originally modified harassment and embarrassment, but was moved to modify only embarrassment in an early amendment to the proposed rule. 28 Wright & Gold, Federal Practice and Procedure: Evidence § 6161, at 323 (1993).
89. Id. § 6164.
90. Colo. Rules of Prof'l Conduct R. 3.4(c), (e). Colorado has adopted a version of the Model Rules of Professional Conduct as its ethical code. The Model Rules have been adopted by all states aside from California, Maine, and New York.
91. Id. R. 8.4(d), (g), (h).
92. The rape law reform movement also included changes to substantive rape law such as redefining rape to include the wife of the accused, eliminating the need for corroboration, and no longer requiring that the victim physically resisted her attacker. See Horney & Spohn, supra note 5, at 118-19.
93. Michelle J. Anderson, From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law, 70 Geo. Wash. L. Rev. 51, 81-86 (2002) (dividing rape shield statutes into four categories, distinguished by the manner and degree to which they admit evidence of a woman's sexual history).
94. Fed. R. Evid. 412. Without the protection of rape shield, such character evidence about the victim could be admissible under Rule 404(a)(2), which permits the accused to raise pertinent character traits about the victim. In this short essay, I will only discuss the criminal part of rape shield. Rule 412 also provides for protection of a party's sexual history in civil cases - often harassment or civil suits for sexual battery.
95. Historically, a victim's sexual history was deemed relevant because it shed light on her propensity to consent and because loose women were inherently unreliable and should be impeached as such. See Anderson, supra note 57, at 60-81 (discussing the historical requirement of chastity both as a measure of harm and as an indication of the woman's character).
96. The Advisory Committee also interpreted the prohibition on the victim's "sexual behavior" to include the alleged victim's lifestyle, mode of speech, and dress. Fed. R. Evid. 412 advisory committee's note.
97. Fed. R. Evid. 412(b)(1). All three exceptions are controversial. The first two represent compromises between the unfair prejudice of the victim's sexual history and the accused's needs to tell a coherent story and place his version of events in context. Scholars document an "intimacy discount" by which crimes against intimates are less likely to be perceived as criminal activities or will be punished more leniently. See Kay L. Levine, The Intimacy Discount: Prosecutorial Discretion, Privacy, and Equality in the Statutory Rape Caseload, 55 Emory L.J. 691, 701-06 (2006). Yet rape shield statutes make an exception for evidence of previous sexual activities between the accused and the victim, so that the accused can tell a full story and contextualize his perception of consent.
98. It is also interesting to think about prosecutors' use of rape myths, though it is beyond the scope of this essay. Just as there are sexist myths about female victims, there are sexist and racist myths about perpetrators. Is it better for society if a prosecutor secures a conviction by relying on the virginal character of the victim? Is justice served if the prosecutor plays upon the fact that the accused is a black man who was unknown to the victim, or a "loser" with no girlfriend - thereby reinforcing those rape myths? Although this "framing" of the alleged perpetrator's personality and history may secure a conviction, the harm to our system of justice and the perpetuation of rape myths is still problematic. See Orenstein, supra note 7, at 700-01 ;
99. Andrew E. Taslitz, Patriarchal Stories I: Cultural Rape Narratives in the Courtroom, 5 S. Cal. Rev. L. & Women's Stud. 387,493-94 (1996).
100. See Kim Lane Scheppele, Just the Facts, Ma 'am: Sexualized Violence, Evidentiary Habits, and the Revision of Truth, 37 N.Y. L. Sch. L. Rev. 123, 154-55 (1992).
101. See Glen Weissenberger & James J. Duane, Federal Rules of Evidence: Rules, Legislative History, Commentary and Authority § 412.1, at 173 (2001) (noting that admission of victim's sexual history leads to "a determent of the prosecution of alleged rapists by victims who wished to avoid public exposure of their past sexual behavior").
102. Representative Elizabeth Holtzman remarked in support of Rule 412, Too often in this country victims of rape are humiliated and harassed when they report and prosecute the rape. Bullied and cross-examined about their prior sexual experiences, many find the trial almost as degrading as the rape itself. Since rape trials become inquisitions into the victim's morality, not trials of the defendant's innocence or guilt, it is not surprising that it is the least reported crime. 124 Cong. Rec. 34,913 (daily ed. Oct. 10, 1978) (statement of Rep. Holtzman).
103. See Owen D. Jones, Sex, Culture, and the Biology of Rape: Toward Explanation and Prevention, 87 Cal. L. Rev. 827, 830-31 (1999) (noting that "rape reforms have had far less impact than hoped"). Scholars have questioned whether changes in the laws concerning rape trials, particularly rape shield that offers judges wide discretion, actually have a positive effect on victims' willingness to come forward, the decision to prosecute, or the outcomes of trials.
104. See Homey & Spohn, supra note 5, at 140-42.
105. See, e.g., Kim Nguyen & Wayne Harrison, Kobe Bryant's Criminal Case Dismissed, KMGH Denver, Sept. 2, 2004, http://www. thedenverchannel.com/news/3699625/detail.html ("This case has been an unmitigated disaster for true rape victims. It will increase distrust. It will cause underreporting to increase...." (internal quotation marks omitted));
106. Amanda Paulson, Is the Rape-Shield Law Working?, Christian Science Monitor, Mar. 25, 2004, at 12 (Bryant case "could also make future victims fearful that their past will be investigated as ruthlessly as this woman's has been").
107. See generally Richard I. Haddad, Shield or Sieve? People v. Bryant and the Rape Shield Law in High-Profile Cases, 39 Colum. J.L. & Soc. Probs. 185 (2005) (arguing that the primary problems for the victim in the Bryant case were the disorganization of the judge, the bumbling of the prosecutor, and the outrageous behavior of the media and Bryant's fans, rather than any technical problem with the rape shield statute).
108. Order re: Defense Motion to Strike Rape Shield Statute as Factually Unconstitutional, People v. Bryant, No. 03 CR 204 (D. Colo. June 10, 2004), available at http://fl1.findlaw.com/news.findlaw.com/cnn/docs/bryant/ cobryant61004ord.pdf.
109. Id. at 3. Colorado has patterned this sexual propensity rule after Federal Rule of Evidence 413. Colo. Rev. Stat. § 16-10-301 (2007). Federal Rule of Evidence 413 allows evidence of the accused's prior sexual misconduct to be "considered for its bearing on any matter to which it is relevant," so that in a rape trial, the prosecution can introduce evidence of past sexual offenses to show that the accused has the character and predatory tendencies of a sexual offender. Jurors are invited to use the prior sexual misconduct evidence to infer that because the accused committed rape on a previous occasion, he was more likely to have committed the rape charged. The prior rapes need not have resulted in convictions, or even arrests. The standard for proving the prior offense is whether a jury could believe by a preponderance of the evidence that the offense occurred.
110. See, e.g., United States v. Enjady, 134 F.3d 1427, 1433 (10th Cir. 1998) ("The district court must make a preliminary finding that a jury could reasonably find by a preponderance of the evidence that the 'other act' occurred.");
111. United States v. Wright, 53 M.J. 476, 483 (C.A.A.F. 2000) (noting that Rule 413 requires "the judge to conclude that the jury could find by preponderance of the evidence that the offenses occurred").
112. See generally Aviva Orenstein, Deviance, Due Process, and the False Promise of Federal Rule 403, 90 Cornell L. Rev. 1487 (2005).
113. The Colorado rape shield statute creates a presumption that evidence of the victim's sexual conduct and reputation is irrelevant; it does not actually exclude evidence, so much as guide the judge's discretion in determining relevance. Colo. Rev. Stat. § 18-3-407;
114. see also Anderson, supra note 4, at 17-18. Anderson traces all the arguments that Bryant's attorneys made regarding exceptions to rape shield, including (1) demonstrating her pattern of sexual conduct with third parties to show the accuser's knowledge, intent, common plan, pattern, and modus operandi; (2) the victim's false statements to police about her sexual activity before and after the incident to show her lack of credibility; (3) res gestae evidence of her other sexual encounters to put the event into context and to understand that the victim's regular sexual conduct was outside the norm; and (4) evidence of an alternative source of semen or injury. As Anderson notes, it is only this last argument that passes the laugh test, and is the one that best supports the defense's theory.
115. Colo. Rev. Stat. § 18-3-407(1)(b).
116. Transcript of Record at 112, People v. Bryant, No. 03 CR 204 (D. Colo. Oct. 15, 2003), available at http://www.thesmokiriggun.com/archive/ kobetranf9.html (last visited Oct. 29, 2007). The injury to the jaw was consistent with the victim's description of how Bryant held her down.
117. Id. at 113.
118. Indeed, the underwear that the victim wore to the hospital contained semen and pubic hair from another man, so the defense had a good faith belief that some other sexual activity had taken place around the time of the alleged rape. Among the three men averred to in the question, the defense included the accused rapist as one and claimed to have a good faith belief as to the existence of a third man.
119. As ESPN news, not usually noted for its incisive legal analysis, suggested, "[T]he case would have ultimately rested on the testimony of a young woman the defense suggested was a promiscuous, attention-seeking liar." Case Will Not Be Retried, but Civil Trial Pending, ESPN News, Sept. 2, 2004, http://sports.espn.go.com/nba/news/story?id=1872740.
120. See Colo. Rev. Stat. §§ 18-3-407 (2)(a) (requiring a motion), (2)(b) (affidavit), (2)(c) (offer of proof), (2)(d) (in camera hearing), (2)(e) (specific judicial finding), (2)(f) (seal), (3)(a) (protective order). There is evidence, however, that courts will not apply such notice limitations strictly if they deprive the accused of an important confrontation right.
121. See Lajoie v. Thompson, 217 F.3d 663 (9th Cir. 2000) (reversing a district court's exclusion of evidence for failure to give notice under the rape shield statute);
122. cf. People v. Cobb, 962 P.2d 944, 946 (Colo. 1998) (holding that exclusion of a witness who did not appear on defense's witness list is too harsh a penalty given Confrontation Clause concerns).
123. Homey and Spohn discuss how the procedural requirement of an in camera hearing to determine admissibility under rape shield exceptions is observed in the breach, especially when the exception related to the prior relationship of the victim and the accused is triggered. See Homey & Spohn, supra note 5, at 141-43.
124. There are many reasons that the victim might have stopped cooperating, including a belief that the prosecution was bumbling. See Anthony J. Sebok, Why Did Kobe Bryant's Accuser Stop Cooperating with Prosecutors?, FindLaw, Sept. 6, 2004, http://writ.news.findlaw.com/sebok/20040906.html. Other reasons might be the fact that Bryant apologized for her pain and recognized that she felt violated, as well as the harassment the victim felt from media and individual Kobe fans, including death threats.
125. See People v. Bryant, 94 P.3d 624, 636 n.12 (Colo. 2004) (noting that "the victim's physical safety has apparently been jeopardized by the publicity in this case"). John Chine, one of the victim's attorneys, stated, "The difficulties that this case has imposed on this woman the past year are unimaginable." Rape Case Against Bryant Dismissed, MSNBC News, Sept. 2, 2004, http://www.msnbc.msn.com/id/5861379/. Chine indicated that the victim was particularly disturbed by mistakes including the release of her name on a state court's web site and her medical history to attorneys.
126. Id.
127. In fact, one commentator has advocated providing victims with attorneys who would have standing to object to any party's questioning for victims of sexual assault and domestic violence. See Lininger, supra note 36, at 1398-1400.
128. See Crawford v. Washington, 541 U.S. 36 (2004) (holding that, for a testimonial statement to be admissible, the declarant/witness must be made available for crossexamination, and defining the key term " testimonial" to include formal statements in legal proceedings and to the police, as well as any statement that the speaker could reasonably expect to be used in a future legal proceeding against the person implicated);
129. see also Davis v. Washington, 126 S. Ct. 2266 (2006) (holding that statements made to police officers in a domestic violence case after the emergency has subsided are testimonial, but that statements made during a 911 call for help and at the scene while an emergency still existed are nontestimonial).
130. See Lininger, supra note 36, at 1363-66 (discussing the effects of recent Supreme Court confrontation jurisprudence).
131. Standards for Criminal Justice: Prosecution Function and Defense Function Standard 4-7.6(b) (3d ed. 1993).
132. See Robert P. Lawry, Cross-Examining the Truthful Witness: The Ideal Within the Central Moral Tradition of Lawyering, 100 Dick. L. Rev. 563, 577-80 (1996) (examining the trend towards increased adversarialism and away from truth-seeking missions). Lawry observes, "Appeals to honor and conscience are gone. In place of the lawyer's discretion and judgment is an admonition to degrade, demean, invade, and insult if there is any tactical advantage to be gained by the client."
133. Id.
134. R. Michael Cassidy, Character and Context: What Virtue Theory Can Teach Us About a Prosecutor's Ethical Duty to "Seek Justice," 82 Notre Dame L. Rev. 635, 667-70 (2006).
135. Id.
136. Model Code of Prof'l Responsibility DR 7-105(A) (1983) ("A lawyer shall not present, participate in presenting, or threaten to present criminal charges solely to obtain an advantage in a civil matter."). Some jurisdictions, such as California, the District of Columbia, and Florida have retained this prohibition despite their adoption of the Model Rules. See Stephen Gillers, Regulation of Lawyers: Problems of Law and Ethics 447-48 (7th ed. 2005).
137. See Gillers, supra note 87, at 447.
138. Antony E. Simpson, The "Blackmail Myth" and the Prosecution of Rape and Its Attempt in 18th Century London: The Creation of a Legal Tradition, 77 J. Crim. L. & Criminology 101, 109 (1986).
139. Deuteronomy 22:28-29 ("If a man meets a virgin who is not engaged, and seizes her and lies with her, and they are caught in the act, the man who lay with her shall give fifty shekels of silver to the young woman's father, and she shall become his wife. Because he violated her he shall not be permitted to divorce her as long as he lives.").
140. Cf. Golddigger Lyrics, 365.com, http://www.sing365.com/music/ lyric.nsf/Golddigger-lyrics-Kanye-West/455A56FFA5F48AFA482570560053ED5E (last visited Nov. 11, 2007) (quoting a rap song that includes the lyrics, "18 years, 18 years; She got one of yo' kids, got you for 18 years; I know somebody payin' child support for one of his kids; His baby momma's car crib is bigger than his").
141. Bryant's accuser was criticized for accepting $20,000 from Colorado Victims' Compensation Fund.
142. See Patrick O'Driscoll, Kobe Bryant, Accuser Settle Her Civil Lawsuit, USA Today.com, Mar. 2, 2005, http://www.usatoday.com/sports/ basketball/nba/2005-03-02-bryant-settles_x.htm.
143. Colorado has caps on noneconomic damages, and "a jury in a civil trial can award up to $366,250 in noneconomic damages for emotional distress and up to double that ($732,500) if the plaintiff can prove by clear and convincing evidence that her mental pain and suffering exceeded the initial cap." Mareia C. Smith, Wood Angles for Best Result (Sept. 3, 2004), http://www.perrybinder.com/kobeocregister.htm (internal quotation marks omitted). It is unclear, however, what the value of avoiding trial was to Bryant. Avoiding depositions that could have involved embarrassing questions concerning Bryant's relationship with other women might have induced Bryant to settle for more than the maximum Faber could have recovered.
144. Kobe & Kate (Sept. 1, 2004), http://www.rajuabju.com/kobevskate.htm. In a previous post the same blogger observed, "If Kobe raped her, what would be a better and more fitting punishment... jail time, or paying out money? Hmmm. I think that most people would prefer to see him do some hard time behind bars. Why would Kate rather get paid? Is money what this whole thing is about? I'm shocked!" Id. This example is typical and not more profane or hostile than many other posts. For example, a post on the LA Times Lakers fan blog page concerning whether Kobe would stay with the team: "Kobe, please don't leave us fans in the dark. We are suffering here, please understand that. We have supported you through thick and thin. We've supported you when KATE FARBER [sic], the whorish opportunist in Denver, falsely used an allegation of the most heinous crime, rape, to extort money from you." Posting of Troy (TaosHum) to Lakers Blog, http://lakersblog.latimes.com/lakersblog/2007/06/ so_if_he_goes.html (June 16, 2007, 20:16 EST).
145. Although there is no specific rule concerning impeachment for bias, the Supreme Court has recognized that it survived the codification of the Federal Rules of Evidence upon which the Colorado rules are fashioned. See United States v. Abel, 469 U.S. 45 (1984) (holding that impeachment for bias is relevant, historical, intended by the rule drafters, and essential to the accused's right to confront witnesses).
146. John Dougherty, 'Jane Doe' Testifies as Trial of Polygamist Leader Begins, N. Y. Times, Sept. 14, 2007, at A17.
147. See Lininger, supra note 36, at 1400-02.
148. Id. at 1401.
149. Id. at 1402.
150. Anthony Sebok, The Kobe Bryant Accuser's Civil Suit: Why It Isn 't Redundant with the Trial or the Victims ' Fund, and Why One of Its Claims Is Very Unusual, FindLaw, Aug. 23,2004, http://writ.news.findlaw.com/sebok/ 20040823.html.
151. Id.
152. See generally William H.J. Hubbard, Civil Settlement During Rape Prosecutions, 66 U. Chi. L. Rev. 1231 (1999) (arguing that structurally, the tampering statutes seems to fit rape cases where the victim agrees not to testify in the criminal case in exchange for a civil settlement, but that those statutes are rarely so applied).
153. The Colorado statutes for bribing a witness, Colo. Rev. Stat. § 18-8-603 (2007), and witness tampering, id. § 18-8-707, do not seem to fit the template of settlement in exchange for refusal to cooperate, given that the victim was not subpoenaed and the prosecutor did not try to force her to participate in the criminal case.
154. Nguyen & Harrison, supra note 67.
155. See State Bar of Mich., Standing Comm. on Prof'l and Judicial Ethics, Op. RI-78 (1991) ("A lawyer may properly advise a client to either withhold or pursue criminal proceedings when such action is consonant with the protection of the client's rights and ... may properly advise a client to either withhold (but not to deliberately conceal) or pursue criminal prosecution consonant with the protection of the client's rights, and may advise a client that the client may, in an appropriate case and in good faith, request that authorities commence or dismiss criminal charges against another party, even though the client's objective is the receipt of compensation or the obtaining of some other redress from the other party.");
156. see also Gillers, supra note 87, at 448.
157. One law professor and former prosecutor was quoted as saying, "No victim should be proud of herself for taking a dive in a criminal case, no matter how many zeros in a civil settlement." O'Driscoll, supra note 93.
158. Another legal analyst for a news station was offended that an "exchange of money will take place between Kobe Bryant and his accuser which has been leveraged by this criminal prosecution to the extreme detriment to [sic] the taxpayers of Colorado." Nguyen & Harrison, supra note 67.