s_knight8
2004-07-28 14:30:50 UTC
http://www.rockymountainnews.com/drmn/news_columnists/article/0,1299,DRMN_86
_3066005,00.html
The latest developments in the Kobe Bryant case raise some hard questions
about rape shield laws. It would have been a travesty if Judge Terry
Ruckriegle had refused to admit credible evidence that Bryant's accuser had
consensual sex with two other men within 48 hours of her encounter with
Bryant, especially given the defense's claim that one of these encounters
took place in the 15 hours between the alleged assault and her subsequent
medical examination.
Colorado's rape shield statute limited Bryant's defense to arguing that this
evidence should be admissible because it provides a plausible alternative
explanation for any physical injury to the accuser, i.e., that such injury
was a product of three consensual sexual encounters taking place over a
short time, rather than of a sexual assault.
The real defense argument, of course, is that the accuser is sexually
promiscuous, and often engages in the behavior the defense claims took
place.
The standard justification for rape shield laws is that defense attorneys
shouldn't be allowed to put the accuser's sex life on trial. Here's a
question we ought to begin asking: Why not? Why shouldn't a trial about sex
include relevant evidence about sex?
There are basically three answers to that question. The good one goes like
this: If the defense is allowed to introduce the accuser's sexual history,
then there's a serious risk that a jury may refuse to convict a defendant
that the jury believes is guilty, if the accuser happens to be promiscuous,
because juries may punish sexually promiscuous accusers by not protecting
them against rape.
This is - or at least was - a good argument, because there's little doubt
this sort of "jury nullification" was common in the days before rape shield
laws. The question we should be asking today is, given the gradual shift in
social attitudes toward casual sex, is the risk of this sort of jury
misconduct still sufficiently strong to justify keeping potentially
compelling evidence out of court?
_3066005,00.html
The latest developments in the Kobe Bryant case raise some hard questions
about rape shield laws. It would have been a travesty if Judge Terry
Ruckriegle had refused to admit credible evidence that Bryant's accuser had
consensual sex with two other men within 48 hours of her encounter with
Bryant, especially given the defense's claim that one of these encounters
took place in the 15 hours between the alleged assault and her subsequent
medical examination.
Colorado's rape shield statute limited Bryant's defense to arguing that this
evidence should be admissible because it provides a plausible alternative
explanation for any physical injury to the accuser, i.e., that such injury
was a product of three consensual sexual encounters taking place over a
short time, rather than of a sexual assault.
The real defense argument, of course, is that the accuser is sexually
promiscuous, and often engages in the behavior the defense claims took
place.
The standard justification for rape shield laws is that defense attorneys
shouldn't be allowed to put the accuser's sex life on trial. Here's a
question we ought to begin asking: Why not? Why shouldn't a trial about sex
include relevant evidence about sex?
There are basically three answers to that question. The good one goes like
this: If the defense is allowed to introduce the accuser's sexual history,
then there's a serious risk that a jury may refuse to convict a defendant
that the jury believes is guilty, if the accuser happens to be promiscuous,
because juries may punish sexually promiscuous accusers by not protecting
them against rape.
This is - or at least was - a good argument, because there's little doubt
this sort of "jury nullification" was common in the days before rape shield
laws. The question we should be asking today is, given the gradual shift in
social attitudes toward casual sex, is the risk of this sort of jury
misconduct still sufficiently strong to justify keeping potentially
compelling evidence out of court?