March 2, 2004

The news from Eagle is disturbing.

This should not surprise anyone. Almost everything about the Kobe Bryant case is disturbing.

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In the latest, the judge turned over two pieces of the accuser's underwear to the defense lawyers, who have said that the cuttings contain semen stains that don't belong to Kobe Bryant.

Wait, it might get worse, even if it's hard to see how it gets much worse than handing over semen stains. The judge is still deciding whether to force the alleged victim to testify in excruciating detail about her sexual history in closed-door testimony later this month.

You can see where we may be headed. It may not be just the underwear that is stained.

You can see it even if you have to look over the Colorado rape-shield law to get the best view.

And just because you can see it - no matter your take on Bryant's guilt or innocence - that doesn't mean you have to like it.

The image you take with you is of the alleged victim on the witness stand, having to answer questions about her taste in lingerie. And she's there because she said someone raped her. And I'm not sure being behind closed doors - after which the judge would rule whether a jury gets to hear this testimony - would make her sleep any easier.

The judge is in a difficult spot, which may account for why he's having trouble making this decision. This is why rape trials are fundamentally different from all other trials, and why what's on trial along with Kobe Bryant is the public attitude toward rape.

I have no idea whether Bryant is innocent or not, although the experts tell us that, so far, the Bryant defense team is well ahead on points. But I do have some idea about the public's view of this case - and not only because Bryant was recently voted by forgiving fans onto the NBA All-Star team.

But you don't have to look ahead to see where we're headed. You have only to look back.

Or you can look in your grocery store at one of the supermarket tabloids - I'm not going to say which, but it features reported pictures of the reported accuser, with her reported name in fully reported party-hearty mode.

What the tabloid editors apparently believe is that their audience believes women who party can't also be rape victims.

We have a problem here. No, we have many problems here.

In the first place, you don't have to be a lawyer to see the conflict between an alleged victim's rights and the rights of the accused - rights that you can't, apparently, write a law well enough to always reconcile.

We have a rape-shield law in Colorado, of some long standing, that was put in place so that women who are alleged victims of rape don't become victims in the courtroom - your basic double jeopardy. The law works. The state Supreme Court has given the law its blessing.

But you can't dismiss the Bill of Rights, which is pretty definite on the rights of the defendant to a fair trial. You can see the tension here, just as you can see that if Bryant is innocent, what a nightmare this has been.

Bryant's lawyers are arguing that a fair trial means the right to discuss semen in the underwear, to discuss which prosecution witnesses might have slept with the alleged victim, to discuss whether, as the defense alleges, she had a "plan" to make her ex-boyfriend jealous.

It has been argued well enough that the judge will listen to more.

The defense argument may well be valid. But the reason for the rape-shield law is that the evidence isn't always the determining factor once the alleged victim's sex life comes into play.

If the judge rules that the alleged victim's sexual history is permissible in court, then the jury, as of old, will have to determine whether Bryant could have raped someone with, as they used to say, a past.

The stakes are clear for anyone to see. Guilt and innocence, though, may be harder to locate.

In the bad-old days, virtually everything was on the table.

And now?

Despite a good rape-shield law, the alleged victim is a tabloid staple.

Despite a good rape-shield law, she has received death threats, and her name and address can be found on the Web.

Despite a good rape-shield law, she may have to testify about her sex life. There could be later findings on her mental records, on her drinking habits, on more.

Despite a good rape-shield law, lawyers drop the allegation - not fact - in open court that she had sex with someone less than 15 hours after the incident with Bryant.

What's clear to see is that the problem with high-profile rape cases is that, inevitably, for all involved, they're high-profile rape cases.

Mike Littwin's column appears Tuesday, Thursday and Saturday. Call him at 303-892-5428 or e-mail him at littwinm@RockyMountainNews.com.

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