October 11, 2003

We don't know what, if anything, happened to the alleged victim on June 30 at the Lodge & Spa at Cordillera.

But we know what happened to her Thursday at the Eagle County Justice Center.

She was warned.

She was warned with all the subtlety of a horse's head on a pillow.

She was warned of the attacks to come.

She was warned that her name - already known in too many quarters - will eventually emerge for public consumption, whatever the rape-shield laws say.

She was warned that Kobe Bryant's lawyers will go after her character, will go after her medical history, will go after her emotional state, will go after her in every way they're legally allowed.

And the media will, of course, follow their lead.

This is what happens in rape trials. This is why so many women are afraid to report an attack.

It was ugly Thursday. And even if you knew intellectually what was coming, it was still a blow to the gut, even for those of us who, like the alleged victim, weren't in the courtroom.

The real story from Thursday's hearing was not, as many would have expected, the prosecution's version of events.

The headline came as the session ended with Pamela Mackey asking an Eagle County detective whether a vaginal injury was "consistent with a person who has had sex with three different men in three different days."

The prosecutor objected.

The judge stopped the hearing, which resumes next week.

And the bell that can't be unrung, as one lawyer-observer described the three-men question, is still ringing.

We all know the word associated with that kind of behavior, and it's not victim.

Are you upset by this? If you are, you'd better toughen up because this is just the beginning.

If nothing else, Mackey has shown herself willing to play the role of heavy in defense of her client. And we can expect more where that came from.

Preliminary hearings are, by their nature, generally uneventful. Mackey, the high-profile lawyer, put everyone on notice that this one was different.

That became clear with Mackey's repeated use of the alleged victim's name - even as the judge had gone to great lengths, possibly even unconstitutional lengths, to keep that name out of the media. Mackey claimed she slipped, which might have been possible the first time. Maybe even the second. Or the third.

But who slips six times?

It was hard to find anyone who believed a lawyer of Mackey's reputation couldn't remember her lines, other than other lawyers, that is. Still, as attorney Scott Robinson, who writes a legal column for this paper, told me, "Oops only works once." Six oopses put her in record territory.

It doesn't matter really, at this point, whether the slips were intentional or not. You can even ask what Mackey hoped to gain by using the name, since most in the courtroom already knew it and no one expects anyone in the media to use it.

But whatever the intent, the message is the same, the same as as the three-men-in-three-days message.

And it's this: Certainly by now the alleged victim knew a trial would be difficult. But now she has some idea, and probably still only a small idea, of just how difficult. And she has six months or more to consider what faces her in the courtroom.

Of course, the three-men-in-three- days story was probably also put out there for the potential jury pool.

Lawyers noted how artfully Mackey played her hand. She asked the question not in reference to the alleged victim's sex life but in reference to the injuries she had suffered.

By asking the question, Mackey was able not only to cast doubt on the cause of the injuries - which is the lawyer's job - but also to put the notion before the public that the alleged victim is a person who sleeps around.

"That," said attorney Robinson, "is why the courtroom erupted."

It's why rape-victim advocates were outraged.

It's why cases like this one, even with far less attendant publicity, are so difficult. If it comes to a he-said, she-said scenario, the defense invariably casts doubt by attacking the woman making the accusation.

Rape-shield laws, in the end, can go only so far.

Lost in much of the coverage, as News writer Charlie Brennan noted in his story today, was that the prosecutor's objection to the three-men question was sustained.

And yet, what difference does that make to the accuser who now also stands accused?

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

MORE LITTWIN COLUMNS »

Copyright 2003, Rocky Mountain News. All Rights Reserved.