Rape case prompted legal battles about privacy vs. speech

By Jeff Kass, Rocky Mountain News
August 26, 2004

It has been called a tabloid tale and, by the admission of one lawyer involved, "titillating and salacious."

But in the 14 months leading up to trial, the Kobe Bryant rape case has brokered debates over bedrock principles including the First Amendment, privacy and the Internet.

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The arguments generally pit the alleged victim's right to privacy against the rights of the accused, and the public's right to know. One fight even debates what to call the woman who says she was raped by Bryant: Victim, alleged victim, or "complaining witness"?

Bryant says the sex in his hotel room on June 30 last year was consensual and has pleaded not guilty.

University of Denver law professor Karen Steinhauser believes the Bryant saga has forced a discussion on more issues than any other case in recent memory. "I think that the next time when there is this kind of very high-profile case, it's going to make the courts think about how best to handle the media, without jeopardizing in any way anyone's privacy interests," she added.

One recurring scrimmage concerns Colorado's "rape shield" law.

Bryant attorneys Pamela Mackey and Hal Haddon lost the battle to have the law declared unconstitutional. But Eagle County District Judge Terry Ruckriegle allowed them to admit evidence of sexual liaisons the alleged victim had dating back 72 hours from the time of her rape exam.

Most attorneys agree the rape shield ruling on July 23 of this year was sound.

The Eagle County district attorney's office argued that the rape shield law bars the woman's sexual history from being part of the trial.

Kathie Kramer, with the Rape Assistance and Awareness Program in Denver, has not bickered with the ruling, noting that, "The purpose of rape shield laws is not to disallow evidence that might be relevant to a sexual assault case. So in this case, Judge Ruckriegle's ruling ... indicates he has seen evidence that might be relevant."

As to whether the ruling, or the Bryant case itself, may have still scared rape victims from coming forward, Kramer did not have statistics on that issue. But she said that, anecdotally, the Bryant case has sparked concern among those who have sought out her organization.

"'I'm so glad I didn't report (to police),'" is what they say, according to Kramer, citing how people have called the woman in the Bryant case a money grubber and blamed her for going to the basketball superstar's hotel room in the first place.

But as Ruckriegle was deciding his rape shield ruling, a related controversy mushroomed when a court reporter mistakenly e-mailed transcripts from a closed-door hearing on the issue to seven news organizations on June 24. (The Rocky Mountain News was not among the seven, but later filed a friend of the court brief as the fray reached the U.S. Supreme Court.)

Former Denver prosecutor Craig Silverman could not recall a similar scenario regarding sealed transcripts, and that one computer click added to the mix a First Amendment battle.

Within hours of the misdirected e-mails, Ruckriegle issued a do-not-publish order to the media. Within days, the media appealed to the Colorado Supreme Court, saying Ruckriegle had improperly shackled them with prior restraint, arguing that the government cannot tell the media what to publish.

The state Supreme Court, however, upheld Ruckriegle on July 19, ruling that the privacy of the alleged victim as enshrined in the rape shield law trumped the right to publish. Two days later, the media turned to U.S. Supreme Court Justice Stephen Breyer, whose duties include overseeing Colorado.

Another two days later, Ruckriegle made his 72-hour sexual activity ruling.

Breyer weighed in on July 26. He did not allow the media to publish, but said Ruckriegle "may decide to release the transcripts at issue." Ruckriegle released edited versions on Aug. 2.

A definitive constitutional showdown over the media's right to publish may have been averted.

But that is exactly the problem, says University of Colorado law professor Paul Campos, in discussing what he calls the most important issue to emerge from the Bryant case.

Campos argues that after the Colorado Supreme Court upheld the prior restraint, the media should have still published what they deemed publishable. He worries that the court rulings have left shackles on the media.

"We're not talking about a chilling effect, we're talking about a freezing effect," he said.

Kramer, of the rape awareness program, takes a different tack. "Why do we need to know these things?" she says of the sexual nature of the transcripts. "Does it serve any purpose besides feeding into our voyeuristic society?"

Technology also made an appearance in the Bryant case.

In July of last year, the Eagle County court instituted a Web site with the filings in the case. But in September, the name and address of the alleged victim, typically kept from the public in criminal filings and not revealed by the mainstream media, was mistakenly posted on the site for about an hour.

That was one of the only times the alleged victim considered dropping the case, her private attorney, John Clune, told the court last month, on July 19. He wanted the site taken down. Nine days later, the woman's name was again mistakenly posted.

But Ruckriegle ruled earlier this month that the site had become an indispensable tool for a small municipality handling crushing demands for information.

Kramer believes the site should be stopped: "Not having a Web site would prevent those types of mistakes," she said.

Attorneys observing the case were supportive of the site.

"I'm a big believer in the Web site," said Silverman, the former Denver prosecutor, who added that "if you have a clerk who would have to make copies and hand them to reporters, mistakes could happen just as easily."

Merritt, the legal analyst, notes that the Web site slip-ups would not be an issue if alleged sex assault victims were named, which she favors.

"I think it does a disservice to women because it perpetuates the stigma it's a crime about sex, when it's a crime about violence," she said. Kramer does not think the naming issue alone is a solution: "I don't think you can change the stigma of sexual assault that easily."

Silverman believes only one person can decide on public naming: "I think that they (the names) should only be published if the alleged victim wants them to be."

Bryant's attorney, Haddon, who has said trial testimony will be titillating and salacious, wanted to call the alleged victim the "complaining witness" up until trial. Calling the woman the victim would indicate that his client was guilty.

Bryant's attorneys added that during trial, each person should be called by their name.

Ruckriegle ruled that during trial, the Eagle woman may be called by her name, or the "alleged victim."

But Denver defense attorney Robert Ransome said, "That isn't going to change the outcome of the case."

Copyright 2004, Rocky Mountain News. All Rights Reserved.