December 19, 2003

Privilege vs. right.

The Kobe Bryant case gets intimate. Again.

Many of the motions coming up for hearing today in the Bryant sexual assault case require balancing privacy privileges against fair trial rights.

In no other type of criminal case is the inherent tension between due process and victim's rights more starkly evident than in a consent-defense rape prosecution, where the incompatible stories of two human beings wind up being aired, weighed and determined in open court.

Kobe Bryant has the constitutional right to pretrial access to all relevant evidence and an entitlement to "confront" his accuser with meaningful documentation.

If the young woman is mentally unstable, has attempted suicide at least twice seeking attention as a "victim," was taking anti-psychotic medicine, and had sex with other men shortly before and after the hotel room incident with Bryant, as claimed, shouldn't Bryant's lawyers be able to explore those areas at trial, armed with more than just rhetoric?

On the other side of that coin are traditional confidentiality privileges protecting medical and mental health records, and Colorado's formidable "rape shield" statute, which with few exceptions declares the sex life of a victim in a sexual assault case entirely off-limits.

Historically, the well-established medical treatment privilege trumps the right of the accused to pretrial discovery of medical and psychological records, unless the defense can show an unequivocal waiver by the listed victim, such as bringing other people into sensitive health-care decisions.

Hence, the use of defense subpoenas to try to force testimony about the young woman's mental and medical problems from her family and friends, an attempt to accomplish indirectly what surely cannot be accomplished directly by just serving subpoenas on hospitals and doctors and hoping for the best.

Of more recent vintage is Colorado's rape shield statute, enacted in 1975 as part of a national trend of protecting rape victims from embarrassing and humiliating cross-examination about unrelated sexual conduct.

This case brings to the fore this difficult issue. The young woman's life was apparently already a mess long before her encounter with Bryant. To what extent should Bryant's defense lawyers be permitted to exploit her frailties?

Yet wouldn't a history of self-destructive and promiscuous behavior be important in assessing her credibility? What if she really is a gold digger or "professional victim," intent on economic or psychological gain rather than justice?

Because the privacy privilege created by the rape shield statute is subject to some limited exceptions, the Bryant defense team is attempting to bring the young woman's sexual proclivities into play by claiming that the physical injuries she suffered could have been caused by other men.

The defense is also attacking the rape shield law head-on, claiming unconstitutionality, quite an ambitious undertaking since the law was upheld as constitutional by the Colorado Supreme Court 25 years ago.

Yet the conflict between the rights of the accuser and those of the accused in a consent-defense rape case becomes even more pronounced when considering the hoary presumption of innocence, the precept perhaps most fundamental of all in our criminal justice system.

Lest it is forgotten in all the hoopla, Kobe Bryant is presumed to be innocent.

If his presumption of innocence is to have any meaning at all, it must be without regard to his status as a sports idol, and despite his public admission to being a philanderer.

That is what makes the whole thing so intensely personal.

Unlike an individual charged with embezzlement, for example, where the presumption of innocence may seem like more of an abstract critique on the quality of the evidence, in a rape case where consent is claimed, the nitty gets down to the gritty right away.

If we honor the presumption of innocence, we are essentially calling the alleged victim a lunatic, a liar, or worse.

How can it get any more personal than that?

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

MORE ROBINSON COLUMNS »

Copyright 2003, Rocky Mountain News. All Rights Reserved.