July 27, 2004

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.

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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?

The bad arguments for rape shield statutes are that the accuser's sexual history isn't relevant to whether she consented to sex in the context of an alleged assault, and that allowing past sexual conduct into evidence will keep victims from coming forward, because of their fear of public embarrassment.

Nothing illustrates the ideological distortion that surrounds rape law better than the former argument. It is, in a word, preposterous. Consider the Bryant case, which appears to be a classic "he said, she said" scenario. The defense's claim is that Bryant and the accuser engaged in casual consensual sex - a claim that, considering Bryant's celebrity, as well as the lifestyles of various NBA stars and the women who cater to those lifestyles, seems plausible on its face.

Given this, what could possibly be more relevant to Bryant's defense than whether or not his accuser has a history of engaging in casual sexual encounters? Imagine if Bryant's accuser had been a virgin, but a statute prohibited the prosecution from pointing this out to the jury. That, in reverse, is the position rape shield laws put defendants in when they bar the defense from introducing evidence regarding accusers' sexual histories.

As for the argument that allowing past sexual conduct into evidence will keep accusers from coming forward, it's an odd scale that treats an accuser's potential embarrassment as a more weighty concern than the risk of sending an innocent man to prison for the rest of his life.

There's no question that, a generation ago, rape law was in need of fundamental reform. Today, the question is whether that reform itself needs reforming.

Paul Campos is a professor of law at the University of Colorado. He can be reached at paul.campos@colorado.edu.

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