Bryant Lawyers to Target Rape-Shield Law

Associated Press ^ | 03/01/2004 | Jon Sarche

[Therapist]

EAGLE, Colo. - Lawyers for Kobe Bryant are ready to target the state's 30-year-old rape-shield law in their hope to bolster the NBA star's defense.

For the first time since their June encounter, Bryant and his 19-year-old accuser were expected to be in the same room together for a pretrial hearing Monday. Parts of the two-day hearing are to be closed.

One of the issues was to be Colorado's rape law, which is similar to laws in all 49 other states. It makes defense lawyers prove why an alleged victim's sexual history is relevant evidence.

Defense attorneys Pamela Mackey and Hal Haddon have argued the law — which generally prevents defense attorneys from using the sexual history of alleged sexual assault victims against them in court — is unconstitutional.

If they cannot convince the judge on that issue, they will have to show that the information should be allowed under a portion of the law that makes exceptions for such evidence.

In court filings, Haddon and Mackey have argued that the woman's sexual conduct is relevant because it could show injuries found in a rape examination the day after the alleged attack could have been caused by someone else. Prosecutors have argued that the information is irrelevant.

Bryant, 25, has said he had consensual sex with the 19-year-old woman. He faces four years to life in prison or 20 years to life on probation if convicted. He is free on $25,000 bond.

In attacking the rape-shield law, Haddon and Mackey have argued that it violates a defendant's right of equal protection. They said that under state law, prior sexual conduct of an alleged sexual assault victim is presumed irrelevant, while the prior sexual conduct of a defendant is presumed relevant.

Legal experts are doubtful that Bryant's attorneys will succeed on the constitutional issue because the rape-shield law has withstood previous challenges in its 30-year history.

Also during the hearing, attorneys were scheduled to resume arguments on whether the woman has given up her right to confidentiality of her medical history by talking about it with others.

The attorneys were also set to debate whether certain evidence against Bryant, including his statement to police, should be thrown out because of the methods police used during the investigation.

The judge was expected to ask both sides to discuss a dispute over his Feb. 2 order that prosecutors give evidence to the defense's forensic expert for testing. The defense claims that prosecutors have told Colorado Bureau of Investigation officials not to turn over cuttings from two pairs of underwear the woman wore the night of the alleged attack and the next day when she went to a hospital for the examination.

No trial date has been set. Another two-day hearing is scheduled to begin March 24.

[Therapist]

Defendant's rights are at issue here as news reports have suggested that the accuser is very promiscuous. In addition, the state's star witness, a bellhop, also had sex with the accuser after the supposed rape. Linda Fairstein prosecuted sex offense cases in New York City for 25 years. She never experienced a rape "victim" that had sex shortly after the incident.

[ruiner]

They'll obviously use the, "she was so distraught after the attack that she isn't responsible for what happened. "

I read an article where a woman who was taking acutane, got pregnant and gave birth to a deformed child (Accutane causes bad birth defects) states that she got depressed from the drug and THATS why she had unprotected sex while using it, despite full knowlege of the potential birth defects.

[Brandon]

Sounds like Bryant's lawyers are getting desperate. That law has been challenged in the past, and was upheld.

[sticker]

Does the prosecution get to ask bryant if he has ever been accussed of sexual misconduct?

[cherry]

If you want to bring in any past history of the victim than I want to know every sordid detail of the defendent'ss past, including his past sexual relaionships, his STD status, his pornagraphy habits, his possible use of any "call" girl type occurances... whether he uses phone call sex lines.....etc...

I could say that I have heard that the accused is a anal sex maniac, but that's just rumor, much like what the crap you are expousing....

maybe you and the other three creeps that are already in jail for threatening this girl and her family can form one big, happy family .......you can buy great big posters of your favorite man and hang them in your cell.....

[Catspaw]

Linda Fairstein prosecuted sex offense cases in New York City for 25 years. She never experienced a rape "victim" that had sex shortly after the incident.

Never? Never ever? Is Fairstein going to be called as an expert witness in the Kobe Byrant case, and if so, how much is she going to be paid?

[Therapist]

She is now a bestselling author (Killz). She was interviewed on Imus in the Morning. Don asked her about the Bryant case because of her past experience as being New York's top prosecutor in that area. Her response will not be used in the case as she is not testifying.

[Catspaw]

Her response will not be used in the case as she is not testifying.

Yeah.

You want to know why she's not testifying? Because expert witnesses never say never because the prosecution (if she were testifying for the defense) or the defense (if she was testifying for the prosecution) would slash her to ribbons if she testified to a "never." The terminology used is "to a reasonable degree of certainty." She should've known that if she had been in court anytime during her years in the prosecutor's office.

Interesting that you'd use someone selling a book on a radio talk show as your reference to whether Kobe Bryant's accuser had sex with someone else.

[CA Conservative]

I have to disagree with you here. While I agree that, in general, a rape victim's past sexual history is irrelevant, what they want to enter into evidence is her sexual activity contemporaneous with the alleged rape, especially shortly after the incident. These can have a significant impact on the creibility of the claim, especially if they indicate a pattern of behavior inconsistent with a rape victim.

As to the issue of her mental state, if the alleged incidents were within close proximity prior to the alleged rape, they are relevant - but not if they occurred years before. If she was depressed, suicidal or displaying attention-seeking behavior shortly prior to the alleged rape, it further challenges her mental state, and thus, her credibility, and is a proper subject for the jury to consider.

Just my 2 cents worth...

[KantianBurke]

Agreed. He either raped her or he didn't. Trying to focus attention on issues other than ascertaining the truth is Johnnie Concranesque.

[cyncooper]

In addition, the state's star witness, a bellhop, also had sex with the accuser after the supposed rape.

Source please.

[Wright is right!]

The supermarket tab The Globe has a pic of the "victim" cavorting with yet another male shortly after the "assault" - and pic is on the front page for all to see in the checkout lines.

Michael

[Brytani]

I don't believe the defense is saying sexual activity weeks, months or even years ago is relevant in this case. However, if she did engage in sexual activity the day of, the day prior or after the allegded attack that is relevant to the defense.

Now, let's say a woman has a history of falsly accusing men of rape that spans a few years (yes, this does happen) in a case like that, wouldn't it be relevant for the defense and also facts the jury should know before sentencing a person to prison for rape?

[Right Wing Professor]

In this state, a few years ago, the rape shield law was used to suppress the fact that the alleged victim had twice in the past made false accusations of rape against other men. The jury, not having heard this, believed her; and a man served 18 months in jail for a rape he didn't commit.

[Brytani]

When the sexual activity of the accuser is relevant to a case, such as prior false accusations of rape or sexual activity within 48 hours of the alleged rape, no rape shield law should apply.

I fully understand a concern that a woman's prior sexual relations will be used against her in a rape case when her prior history has no relevance to the rape. However, when sexual activity is directly related to the case, this evidence should be allowed into evidence.

[Therapist]

His semen was in her skivvies. I suppose it could have been artificial insemination. :-)

[cyncooper]

Source that his semen was in her underwear please.

[Right Wing Professor]

When the sexual activity of the accuser is relevant to a case, such as prior false accusations of rape or sexual activity within 48 hours of the alleged rape, no rape shield law should apply.

I understand that under old law, such evidence wouldn't have admitted unless deemed relevant. The rape-shield law was written to make sure it was never deemed relevant.

[freedomluvr1778]

I understand that under old law, such evidence wouldn't have admitted unless deemed relevant. The rape-shield law was written to make sure it was never deemed relevant.

I'm not sure what laws of which State you believe you are referring to, but that's just not the case. Such information regarding past false allegations IS allowed under rape shield laws, just as other sexual-related details may be, if the court so decides. The information has to be deemed completely relevant to the case and can not be so inflamatory that it may bias the jury. There is a legal term for the process of excluding relevant evidence that, because of its inflamatory nature, may unfairly bis the jury - I just can't recall the term. That's what the judge will rule on in this case. Its really no different than low-profile cases.

[Iwo Jima]

I find your comments totally offensive and uncalled for. You should try to maintain some sense of good manners and not resort to such vicious and totally unwarranted attacks. You can make your points as to your opinions of the facts and the law without being such an unmitigated shrew. You owe Therapist an apology.