Denver Post
'02 ruling may keep Bryant accuser's past out of court
Monday, November 10, 2003 -
A 2002 Colorado Supreme Court ruling could seriously limit what Kobe Bryant's lawyers say about his accuser at trial, although legal experts say there still may be a way to present information about her sexual history.
For some lawyers, the unanimous decision in People vs. Harris sends a clear message: In cases where a rape suspect claims the sex was consensual, defense attorneys cannot show the alleged victim's vaginal injuries may be from other consensual sexual encounters. Nevertheless, nuances in the rape-shield law may permit evidence about the accuser's credibility and sexual activities to be presented at trial, other lawyers say. "These cases turn on the individual facts of the case," said Larry Pozner, a veteran Denver lawyer and former president of the National Association of Criminal Defense Attorneys. "The Bryant defense is going to stress that their facts are substantially different and more powerful than in the Harris case." A 19-year-old hotel worker has accused Bryant of raping her June 30 at the Lodge & Spa at Cordillera in Edwards. Bryant has said the two had consensual sex. His next hearing, an advisement of the charge against him, the possible penalties and his rights, is scheduled for Thursday. At Bryant's recent preliminary hearing, defense attorney Pamela Mackey drove home the suggestion that the accuser may have had sex with three men in three days around the time of the alleged rape. The Eagle woman said she had consensual intercourse with a partner June 28, two days before she says Bryant assaulted her. Pozner said presiding Judge Terry Ruckriegle may allow that type of information at Bryant's trial to explain the lacerations to her vaginal area. But to Boulder lawyer Claudia Bayliff, project attorney for the National Judicial Education Program, Chief Justice Mary Mullarkey was clear in her Harris ruling. "The Colorado Supreme Court unanimously held that the defendant could not introduce evidence of the victim's prior consensual behavior even to explain the presence of injury," Bayliff said. The 2002 opinion came in the case of David E. Harris, 43, convicted of first-degree sexual assault of a 26-year-old Colorado Springs woman. Like Bryant, Harris claimed the sex was consensual. Like Bryant, Harris claimed the woman's injuries could have resulted from her having sex with another man - in that case, her boyfriend. An El Paso County District Court judge presiding over Harris' trial didn't allow evidence of the woman's intercourse with her boyfriend, citing Colorado's rape- shield statute. Mullarkey said the rape shield statute established "a presumption that evidence relating to a rape victim's sexual conduct is irrelevant to the proceedings." Under Colorado law, relevant evidence is evidence that helps a jury determine whether an action did or didn't happen. "Such prior sexual relations evidence would have shown only that Harris may not have caused the abrasion," she wrote. "It would not, and logically could not, have shown whether (the victim) consented to her sexual encounter with Harris." Mullarkey noted that the Colorado rape-shield law attempts to strike a balance between the defendant's rights and the victim's privacy interests. It does this, she wrote, by insisting the victim's sexual history be relevant and material to the case before it is admitted into evidence. Leslie Rothenberg, a former prosecutor and Dade County, Fla., circuit judge, said the Harris case "clearly protects" the accuser in the Bryant case. "Although the rules of evidence generally favor admission of evidence, the rape-shield statute creates a presumption that the evidence relating to victims of sexual (assault) is irrelevant," Rothenberg said. "I think People v. Harris is clearly on point, and clearly sets the parameters." However, Rothenberg conceded the defense could get information in about the accuser's sexual history if they can persuade Ruckriegle it is relevant. The rape-shield law does have exceptions that permit defendants to delve into a woman's sexual history. Evidence of a rape victim's sexual conduct can be admitted if it shows which sexual activity was the source of semen, disease or how the woman became pregnant - typically in order to prove a defendant did not commit the alleged assault. The law also allows "similar evidence," a catch-all category, which many lawyers contend covers how a woman sustained her injuries. Ultimately, factors in the Bryant case could be different enough from the Harris case to make that possible. Denver lawyer Karen Steinhauser said how the injuries occurred is critical to the Bryant defense. The defense team could come up with facts that are far different from the facts in the Harris case, said Steinhauser, a visiting professor at the University of Denver School of Law. "Let's suppose the defense finds a couple of guys she (Bryant's accuser) allegedly slept with. And they testify at a rape-shield hearing that, 'We had really rough sex; that's the way she liked it,"' Steinhauser said. That would change the entire complexion of the case, because it might be relevant to explain the lacerations on the woman, she said. But Dan Recht, a Denver defense lawyer who has done ongoing analysis of the Bryant case, said he does not think the facts in the Bryant and Harris cases will be different enough to matter. "I think it (Harris) creates a difficult situation for the defense," he said. "The facts in the Harris case are so similar to the alleged facts in the Bryant case that it creates a significant problem for the defense." For James Doyle, former head of the public defender division of the state of Massachusetts, the issue comes down to defendants' right to confront their accusers with relevant information. That is a basic tenet of law "which will trump any other statutory policy, including rape shield," Doyle said. But he warned that what is relevant in a particular case can be an extremely complicated issue that a judge must sort out. Doyle noted it was once relevant to show the "victim was of unchaste character in general and therefore not worthy of our protection." That theory was cast aside when a wave of rape-shield laws were implemented in the mid-1970s that held a victim's sexual history was irrelevant and highly inflammatory, he said. "If what (the defense) is saying is that this is relevant because it shows she had consensual sex with a bunch of guys, then, no, that is not relevant," Doyle said. "But if what it does is show how the physical symptoms that the prosecution has pointed to as proving Bryant is guilty can be explained in another way, well then, if medical science bears out that assertion, then I'd say it is pretty relevant." Steinhauser, a former prosecutor, and Jeralyn Merritt, a Denver defense lawyer who is treasurer of the National Association of criminal Defense Lawyers, say credibility of the accuser may also be vital in the Bryant trial. Steinhauser said the judge might be presented with evidence that shows the alleged victim is not a truthful person and has lied in the past. Merritt said that in deciding whether to permit credibility evidence at trial, a judge must weigh its relevance to any unfair prejudice it might have on the proceedings.
"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 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." The law also states that in sex assault, incest and sexual exploitation of children cases, if the defense wants to present any evidence about the victim's or witness' prior or subsequent sexual conduct in sexual assault - or a history of false reporting of sexual assaults - not covered by the exceptions, then the defense must make a written motion to the judge 30 days before the trial. The motion is to be accompanied by an affidavit in which an offer of proof is outlined. If the judge finds that the offer of proof is sufficient, then the court can hold a closed, nonpublic hearing at which the victim or witness can be questioned and which the defense and prosecution can also present other witnesses. If the judge finds the evidence to be relevant, the judge will allow it at trial. |