The dismissal of rape charges against basketball superstar Kobe Bryant
has triggered a lively debate how the decision will affect sexual
assault cases in the future.
Radical feminists were in a frenzy that the judge had decided to allow
DNA evidence which painted Bryant's accuser as a floozy. Sasha Walters
of the Chicago-based Rape Victim Advocates exclaimed, "This decision
will be seized on by defense attorneys around the country. It will take
us back to when the emphasis in a trial was on the actions of the
victim."
University of Colorado law professor Paul Campos shot back, "If you are
not Kobe Bryant, you could find yourself in a case where you may well
have to negotiate a plea in order to avoid spending the rest of your
life in prison."
But Walters and Campos both missed the larger issue. Because over the
past 20 years, radical feminists have been working behind the scenes to
do an extreme make-over of the laws of rape.
Rape, of course, is a horrific crime. And the act of rape is just as
terrible as making a false accusation of rape.
False allegations of rape occur more often than most people think. One
study found that 41%
of women who had reported rape to the police later
admitted the allegation was false. And a 1996
Department
of Justice report concluded, "in about 25% of the sexual assault cases
referred to the FBI,.the primary suspect has been excluded by forensic
DNA testing".
So the purpose of our legal system is to determine the truth of the
allegation, and to mete out punishment where punishment is due.
For years, the law defined rape as "forced sex without consent."
All that changed in 1979, when New Jersey passed the so-called N.O.W.
act. Under that law, "sexual assault" was defined as "an act of sexual
penetration with another person [when] [t]he actor uses physical force
or coercion."
Imagine that being parsed in front of a sympathetic jury. With such an
expansive and ambiguous definition, many, if not most instances of
non-marital intercourse could be construed to constitute rape.
It wasn't long until that line of thinking made inroads into the laws of
other states.
In 1996 the Cato Institute surveyed the damage caused by the 1979 New
Jersey law. The report
concluded
that greatly expanded definitions of
rape represent "dangerous moves to eviscerate the presumption of
innocence in sexual assault cases".
Bruce Fein, an expert on constitutional law, is even more pointed in his
critique. He has compared the due process violations of men accused of
rape to the "unilateral and summary pronouncements of guilt like the
Queen of Hearts in 'Alice in Wonderland'."
How did the evisceration of rape law play out in the Kobe Bryant case?
First, many have criticized District Attorney Mark Hurlbert for filing a
case that was deeply flawed from the very beginning. Hurlbert reasoned
that dropping the case would have sent the wrong message to future rape
victims. But did he stop to consider that pursing a weak case against an
innocent man might also be sending a bad message?
For months, the DA repeatedly referred to the accuser as the "victim," a
word that carries a strong presumption of Kobe's guilt. Finally,
Bryant's attorney had to petition the judge to order the DA to stop
using the V-word.
And why not refer to the accuser by name, as is the usual practice in
legal contests? The reason is, Colorado has a law that prohibits
releasing the name of the accuser, presumably to protect the woman from
further embarrassment. But isn't a man who is accused of rape entitled
to the same consideration? Doesn't that double standard violate the
principle of "equal treatment under the law"?
Worst of all are the rape shield laws, which presume a woman's sexual
history cannot be counted as evidence in a rape trial. But the accuser's
concurrent sexual activities had an important bearing on this case. Rape
shield laws war with the presumption of innocence, and ultimately
encourage the filing of false accusations.
As part of the withdrawal agreement, Bryant was required to offer an
apology to the accuser. But given the scurrilous campaign of radical
feminists to undermine the constitutionally-protected right of due
process, perhaps it is they who owe a letter of apology to Mr. Bryant.
