February 5, 2004

Lawyers have a saying, "Hard cases make bad law." We'd like to remind legislators that tragic stories also make bad law.

Members of the Senate Judiciary Committee heard such stories last week in support of two bills that would sharply curtail public access to information in cases involving unlawful sexual behavior. Both pieces of legislation are an overkill reaction to the disclosure of the name of the woman who accused NBA star Kobe Bryant of rape in a hotel near Vail.

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One legislative witness was Lisa Simpson, a former University of Colorado student, who is suing the school over a December 2001 party where she says she was raped by two football recruits. Another was Kathryn Lovell, who was wrongly identified via the Internet as the woman who accused Bryant of rape.

As sympathetic as we are to both women, neither case, ironically, reflects the kind of alleged media abuses the bills aim to curb. The media did not reveal Simpson's name when her case was being investigated by the Boulder district attorney, who elected not to file charges. It was published first by the The Daily Camera in Boulder only after she filed her civil suit, a court document available to the public.

Lovell was the victim of Internet gossip, not the media. In fact, the media covering the Bryant case knew the alleged victim's name early on, after court personnel accidently posted it on a Web site. None of the media's mainstream members, including the Rocky Mountain News, has revealed her identity.

Yet Senate Bill 60, introduced by Sen. Bruce Cairns, R-Aurora, would make secrecy rather than openness the norm. One of the bill's amendments would require most hearings relating to victims' or witnesses' sexual conduct be held behind closed doors, and all motions and documents, including court records, automatically be sealed.

Unsealing them would require a court order.

The legal presumption now is that court records are open unless a judge rules otherwise. But Cairns' bill would establish the opposite, thereby ensuring many and perhaps most records in such cases would be sealed. It's a poor precedent to carve out a single category of victims for such extraordinary protection.

Judges can close hearings and seal documents now when they believe it is necessary. For example, State District Judge Terry Ruckriegle, who is presiding over the Bryant case, said last week that testimony concerning the content of Bryant's statements that haven't been made public would be heard in private, as it hasn't been determined whether they will be introduced at trial. But arguments about whether the statements were obtained legally were heard in open court this week.

Senate Bill 46, sponsored by Sen. Peter Groff, D-Denver, would expand on Cairns' proposal by giving judges statutory authority to do what they're already permitted to do, namely issue court orders restricting the disclosure of information about rape victims. His bill isn't so much harmful as unnecessary.

Groff himself has acknowledged that the primary intent of his bill is "to send a strong statement" about victims' rights. The legislature should send him and Cairns a strong statement that the statute books are no place for symbolism or laws that promulgate secrecy.

Copyright 2004, Rocky Mountain News. All Rights Reserved.