March 2, 2004

Behind closed doors.

That's where Chief District Court Judge Terry Ruckriegle was originally scheduled to hear critical "sexual history" testimony today in the Kobe Bryant case.

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Prosecutors Monday asked the court to limit the scope of defense inquiry into the alleged victim's sexual encounters with others and were initially rebuffed, but late in the day Ruckriegle relented, and agreed to give the parameters of questioning additional thought.

Whenever the matter is actually heard, however, behind closed courtroom doors is where it belongs, unless and until the court decides that other sexual activity engaged in by the alleged victim is relevant to the charge of forcible sexual assault or to the defense of consent.

Colorado's stringent "rape shield" statute presumes inadmissibility of other intimate interludes involving claimed victims of sexual assault, subject to few exceptions.

If the constitutionality of the law is upheld - likely considering precedent - Bryant's attorneys must overcome a formidable obstacle before jurors would hear testimony about the young woman's sexual conduct shortly before, and apparently after, her tryst with Bryant: legal relevance.

The defense has, however, vaulted over the threshold hurdle of convincing Ruckriegle to hold an evidentiary hearing on the issue, itself no small task and a relative rarity in sexual assault prosecutions.

Disturbing physical evidence surely helped the defense overcome the usually automatic exclusion of sexual conduct evidence in consent defense cases.

The young woman's blood, along with bodily fluid from another man, were found on underwear she was wearing when she went to the hospital for a post-incident rape examination, a garment not worn the night she met Bryant. A pubic hair from another Caucasian man also was found.

These embarrassing forensic findings, coupled with statements which the young woman made to investigators about liaisons with two other men in close in time to the incident with Bryant, doubtless went a long way toward the court's decision to hear at least some pretrial testimony before ruling on admissibility.

This means that Bryant's lawyers will probably be permitted at some point to question the young woman at least to some degree about the messy details of her activities in the days preceding the Bryant encounter. Prosecutors unsuccessfully argued that such questioning would defeat the very purpose of the rape shield law, designed to prevent revictimization of rape victims in humiliating and degrading courtroom interrogations.

While relatively few people initially will hear this highly personal testimony, still it will be a mortifying experience for Bryant's troubled teenage accuser. What the defense team wants is much more, for jurors to ultimately hear testimony concerning the specifics of the young woman's busy social calendar.

To accomplish that, the defense will have to show that the young woman's active love life somehow supports Bryant's consent defense.

Her assent to others is by law irrelevant to consent with Bryant. Our Colorado courts have consistently refused sexual history evidence, even when there exists substantial proof of promiscuity or when the evidence is proffered as an alternative basis for injuries suffered.

Recent court filings revealed myriad defense theories for admissibility, which while quite creative, still seem directed at impugning the alleged victim's character, an absolute legal no-no.

The line between moral character and credibility is a fine one, but the defense will have to go much further than it has thus far to convince Ruckriegle that what the young woman has agreed to do with others is relevant either to the elements of sexual assault or to Bryant's consent defense.

Despite the young woman's remarkably casual attitude toward the choice of undergarments worn to the rape-kit examination, and the seeming incongruity of consensual sexual activity soon after an alleged act of rape, chances are that her private life will remain that, relatively private.

Scott Robinson is a Denver trial lawyer specializing in personal injury and criminal defense.

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