March 23, 2004

Defendants accused of rape or sexual assault do not forfeit their constitutional rights to a fair trial as set forth in the Sixth Amendment. And one of those rights is "to be confronted with the witnesses against him."

That means defendants or their attorneys must be able to question their accusers on any topic relevant to the charge - which brings us to the Kobe Bryant case. The woman who has accused Bryant of raping her is expected to testify Wednesday or Thursday at a closed hearing in Eagle County. District Judge Terry Ruckriegle not only ruled that the defense provided sufficient reason to question her, he also rejected the prosecution's request to limit the scope of the questions.

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Some victims' advocates are up in arms, claiming rape victims won't go to authorities if they fear they're going to end up being grilled by lawyers. But this time the advocates are wrong. Colorado's rape shield law provides exemplary protection for victims' privacy - with the latest evidence being the Bryant case itself.

Colorado's law presumes that testimony about a victim's previous sexual history and other personal matters is inadmissible in court. But it does permit the defense an opportunity to provide evidence that certain specific information regarding the accuser's sexual history is relevant to determining the defendant's guilt or innocence.

In the Bryant case, the defense claims the accuser had sex both shortly before her encounter with Bryant and also very soon afterward, before she went to have a rape exam. The defense may argue that her injuries were inflicted by one of these other partners. If the judge agrees that some or all of the information presented at this week's closed hearing is relevant, then he will rule that it is admissible at trial, too.

In short, there are high hurdles for the defense before anyone gets to hear the accuser's testimony, and even then it will be heard at trial in open court only if the judge rules it is relevant to the defense. To go any further in the name of protecting the victim's privacy would undermine the defendant's rights.

Karen Steinhauser, a former prosecutor who now teaches at the University of Denver Law School, says she believes the process works as intended.

"Judges are very careful, very concerned" about privacy, she said.

But she points out that they are also mindful that if they bar potentially relevant testimony and the defendant is convicted, he can always appeal the ruling. And if the appeals court agrees with the defendant, it can then order a new trial at which the previously excluded testimony will be heard - meaning the victim ends up having to testify in open court at two trials.

That's not fair either to the victim or defendant. Far better to follow Judge Ruckriegle's practice and abide by the Sixth Amendment the first time around.

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