Robert J Meadows. Criminal Justice Studies. Volume 17, Issue 3, 2004.
Introduction
The battle lines are drawn around the Kobe Bryant rape accusation; the public and media love it. The 2004 case is evolving into a courtroom drama featuring a married black superstar athlete charged with the sexual assault of a young white female. Adding to the public fervour and media hyperbole is that the alleged crime occurred in a predominately white and politically conservative community, in a state with one of the toughest sexual laws in the nation. While the criminal charges were dropped against Bryant, public debate continues with a civil trial a possibility.
An accusation of sexual assault in any jurisdiction is a serious charge. Such allegations invite inquiry about the dynamics of the encounter, the defendant’s constitutional rights to discover evidence and the accuser’s privilege to withhold personal information. In other words, how much information should be revealed about the victim’s past sexual or mental history, while preserving the defendant’s right to discovery and fair trial?
A conviction of rape or sexual assault may result in a lengthy prison sentence, registration as a sex offender and a host of social stigmas. In Colorado, a felony conviction of sexual assault may result in a 20‐year prison sentence. The Bryant case, as with similar cases brought before state courts where the evidence hinges primarily on ‘he said–she said’ accusations of sexual misconduct, is a test case for discovering evidence about the credibility of the parties involved. In these cases, it is often the word of the accuser against the accused unless there is some shocking physical evidence to the contrary. In a ‘he said–she said’ scenario, the credibility of the accuser is key, and it is possible that one could be convicted based entirely on the accuser’s testimony.
Under rape shield laws information about the accuser’s background is off limits unless a judge allows such evidence – a rare event indeed. The purpose of this article is to examine legal and ethical issues of rape shield legislation in so called ‘he said–she said’ incidents of sexual misconduct. In these cases, there is generally no evidence other than statements of the accuser and the accused. These cases usually evolve into a credibility comparison between the two.
Rape Shield Laws
Rape shield laws are intended to limit testimony about an accuser’s sexual and psychological history. The laws do not necessarily apply to a victim’s identity. While the accuser’s name (if an adult) may be revealed to the media it is not done so as a judicial decision but rather as the result of investigative reporting disguised under First Amendment freedoms.
The identity of the accused is often released to the media after an arrest, often before a formal charge or indictment has been filed. Rape shield laws were passed following lobbying by feminist activists, lawyers and legislators. The intent of the law was to ease the emotional burden of rape victims who testified in court.
In 1978, the United States Congress followed this trend and enacted Rule 412 of the Federal Rules of Evidence. This Rule declares that ‘evidence offered to prove the victim engaged in other sexual behavior, or evidence offered to prove any victim’s sexual predisposition, is generally inadmissible in any civil or criminal proceeding involving alleged sexual misconduct’. In 1994, Congress made significant changes to the rules, including clarifying the criminal rule and extending it to civil actions.
Although variations and inconsistencies in applying the law exist, all states generally limit the use of a victim’s prior sexual history. The argument for the rape shield laws has merit because it protects victims of sexual assault from embarrassment and unnecessary publicity by dredging up irrelevant information about their background. Allowing questioning about a victim’s prior sexual history would humiliate and discourage rape victims from reporting and pursuing charges. And, as in the Bryant case, the jury’s attention may be diverted from the salient issue of the defendant’s responsibility to the victim by focusing on her clothing style, attitude, behavior and sexual past. Yet, the defense in the Bryant case is undertaking an aggressive strategy by asking the trial judge to toss out Colorado’s rape shield law so they can tell jurors about the woman’s sexual history. A history they feel is material in their defense strategy.
The Bryant’s attorneys are seeking information about the 19‐year‐old woman’s sexual conduct before – and after – her encounter with Bryant. The defense also asked the judge to allow evidence that the woman attempted suicide twice and had been treated with an anti‐psychotic drug. Where the information came from or whether the defense is successful remains to be seen.
Discussion
The policy of rape shield legislation has honourable intentions. However, the dynamics of sexual relations between adults has changed, with consensual sexual encounters or pre‐marital sex becoming more common. On many college campuses for example, dormitories are often coeducational. There are many social venues supporting festive encounters including alcohol or recreational drug use between the sexes. And, there is a constant flow of subliminal messages driven by the media and various advertisers encouraging sexual encounters. All these factors increase the chances of sexual encounters and possibly allegations of assault, whether genuine or questionable.
It is recognized that unwanted sexual relations do occur in consensual dating encounters. Early research conducted by Koss revealed that date or acquaintance rape is more prevalent than previously thought. Her research of over 5,000 female and male college students served as the foundation of many investigations on the prevalence, circumstances and aftermath of acquaintance or date rape.
Some of the major findings were:
- One in four women surveyed was a victim of rape or attempted rape.
- Eighty‐four percent of those raped knew their attacker.
- Fifty‐seven percent of the rapes happened while on dates.
- Eighty‐four percent of those men who committed rape said that what they did was definitely not rape.
While Koss and others introduced a problem in need of serious further examination, her research neglected to determine the dynamics of the encounters or the motives of the victims. The research revealed that alcohol and drug usage were common with both parties, and that some women who claimed rape continued to date the offender after the alleged offence. More recent evidence conducted by the National Institute of Justice revealed that many students encounter unwanted or forced sexual contact. The NIJ study found that during any given academic year, nearly 3 percent of women will experience a completed and/or attempted rape. The study results were based on a telephone survey of a randomly selected, national sample of 4,446 women who were attending a two‐ or four‐year College or university during fall 1996. However, the researchers recognize that their findings will not settle the debate of how much rape actually occurs or why more acts are not reported. They admit that interpretation of the data is in the ‘eye of the beholder’, with further research needed. Such research is based on self reporting, suggesting that in some cases a respondent’s credibility or legitimacy may be an issue; or at the very least may lack corroboration.
It is not the intent to undermine any research on date or consensual rape, but to question the reporting or dynamics involved in some of these encounters. If two consenting adults freely engage in routine drinking or other drug usage at a venue where a sexual act is likely to occur, how is it established that a rape occurred, that the encounter was forceful or that the accuser is totally reliable? What if the date was consensual and both have dated before or had sexual relations in the past?
It is understood that ‘no means no’ regardless of the relationship, and if there is credible evidence to substantiate a crime of rape an aggressive prosecution is required. Yet, if one is accused of rape under dubious circumstances, is not it appropriate to delve into the background of the accuser as well? In other words, is it possible that the accuser may not be trustworthy?
Some states have taken a particularly tough stance on rape. The Governor of Illinois pushed for stronger rape legislation. As of 2003, if an individual says ‘no’ at any time during the consensual sexual act, the other person must stop or it becomes rape. Advocates of the law believe that it will deter potential rapists and will help encourage more individuals to come forward when they believe they have been raped. However, opponents argue that the law gives people the right to change their minds during consensual sex, leading to false sexual‐assault accusations and difficult court cases.
The Illinois law may open the door to false rape accusations especially if someone as famous as Kobe Bryant is involved; emotions may take precedence over facts and there may be tragic consequences. If a majority believe that men were being falsely accused of rape; then women who are truly raped would have a very difficult time getting a conviction.
While it is established that a number of consensual dates have evolved into genuine rapes, there are studies to suggest that a number of accusations of sexual misconduct in consensual encounters are false. Let us examine some of these accusations. Of 556 accusations of rape examined in an Air Force study, 27 percent of the accusers admitted, either just before taking a polygraph test or after failing one, that they had lied.
In a nine‐year study of all resolved rape cases in a Midwestern US city of 70,000, the accusers recanted their charges 41 percent of the time. This figure does not include the other accusations that the police departments recorded as unfounded, due to insufficient evidence to establish the assault.
In a survey of all the forcible rape complaints during a three‐year period at two large Midwestern state universities, 50 percent of the accusations were deemed false. At each university, the complaints and investigations were the responsibility of a ranking female officer, and no complaint was declared false unless there was a recantation by the accuser. Fifty‐three percent of the accusations were motivated by a need for an alibi. Revenge was the motive for 44 percent.
The inability to assess validity in ‘he said–she said’ accusations of sexual misconduct on campus has led one leading university to re‐examine its policies. During the 2000/1 academic year, Harvard University conducted seven lengthy sexual‐misconduct investigations, but found sufficient corroborative evidence to discipline only one accused student. Before the university opens a disciplinary case of sexual assault, a complaint will have to indicate that ‘sufficient corroborating evidence’ exists for the charge.
From the prosecution’s viewpoint, research on sexual assault arrests in Kansas City and Philadelphia indicated that in cases involving friends, acquaintances and relatives, prosecutors were significantly less likely to file charges if the victim engaged in risk taking behavior at the time of the incident or if there were questions about their reputation or character. If the victim and the suspect were (or had been) intimate partners, prosecutors were less likely to file charges if the victim engaged in risky behavior. Prosecutors were more likely to file charges if the victim was injured. In other words, victim characteristics and behavior continue to influence charging decisions in at least some types of sexual assault cases.
It would appear that such findings would contradict or at least raise additional questions about self‐reported rape accusations. With the risks of unlawful sexual activity or sexual misunderstandings increasing, followed by possible criminal charges, what evidence should be admitted regarding the accused and accuser? Notwithstanding the benefits of rape shield legislation, some argue that an accused sexual offender may not receive a fair trial, and that the laws are discriminatory against men.
The defendant’s background or prior record is often introduced into evidence during trial for the purpose of showing propensity of violence and so forth. Such information stimulates media frenzy resulting in perceived notions that the accused is guilty, at least by public opinion, a perfect scenario for a politically motivated prosecutor. Kobe Bryant for example has been booed and jeered in many sport venues.
Accusations surfaced that he had another adulterous encounter prior to the Colorado incident. Additionally, an elected judge may be reluctant to rule on motions favoring the accused out of fear of giving in to his celebrity status.
There are cases where accusations of sexual misconduct protected by rape shield legislation have caused an injustice. The following are some examples of how rape shield legislation can actually harm a defendant. In 1998, Oliver Jovanovic was convicted of an attack on a 20‐year‐old student. He met the women over the Internet where they had come to know each other during regular, often explicit sadomasochistic conversations. They met on several occasions with Jovanovich admittedly tying up the woman, burning her with hot wax and sexually abusing her with a police nightstick. He was tried and convicted of the sexual crimes. From the time of his arrest Jovanovich insisted that his encounter with the woman, while sadomasochistic, was consensual.
During the trial, Jovanovic’s lawyer sought to undermine the woman’s claims of physical injury and to show that she had willingly engaged in the encounters. He introduced email exchanges into evidence that showed the encounters were consensual. The judge refused to admit the email messages, citing the state’s rape shield law, which is intended to protect the victim’s past from undue scrutiny. After Jovanovic was convicted and sentenced, his lawyer appealed the Judge’s exclusion of the email messages. The Appellate Court ordered a new trial ruling that the email messages had been improperly excluded.
The majority opinion stated that: ‘Jovanovic was precluded not only from bringing out the degree to which the complainant seemed to be inviting sadomasochism’, but also from exploring whether she was ‘a less reliable narrator of events than she appeared to be at trial’. According to the appellate ruling, the messages included one, sent two days before the attack, in which the woman wrote Jovanovic that she was dating a sadomasochist. ‘Now I’m his slave’, she wrote, ‘and it’s painful, but the fun of telling my friends, Hey, I’m a sadomasochist, more than outweighs the torment’. In a later message, she responded affirmatively to a question from Jovanovic about whether she was ‘submissive’. In another, she used the slang term for a submissive partner in a sadomasochistic relationship to describe herself. In 2001, the New York State Supreme Court dismissed all charges against Jovanovic after state prosecutors say that Jovanovic’s accuser was no longer willing to testify as a second trial.
Prior to the Jovanovic trial, the most infamous case to raise these issues was that of sportscaster Marv Albert, who was accused by long‐time friend and sex partner of oral sodomy and assault. At the 1997 trial, Albert’s attorneys wanted to bring up the accusers alleged conduct with other men. The accuser reportedly harassed and threatened a former boyfriend’s family, and may have made false accusations of crimes as a form of revenge. A former lover was also willing to testify that biting, on which the assault charge against Albert was based, was a part of her sexual repertoire. All this testimony was barred by the Circuit Court Judge. With the defense’s hands tied, Albert pleaded guilty to misdemeanor assault.
False rape accusations resulting in dropped charges can cause pain and suffering to the accused. Tucker Carlson of Crossfire CNN fame was falsely accused of rape. Carlson’s reaction to the false accusation is illustrative of how even a patently false accusation can potentially ruin a man’s life. Carlson spent thousands of dollars defending himself against the accusation, and many perceived him as a sexual predator. Fortunately, it was revealed that the woman who had accused him was not only had a chronic mental disorder, but also had accused Carlson of raping her in a city that Carlson had never even visited.
A recent 2003 allegation of sexual abuse against a transient man in Garden Groove, California has created intense publicity about the power of an accuser, particularly a minor. In this case, three young girls (11–12‐years‐old) who were late to school, and fearing punishment from their parents, accused a local transient of sexual molestation. The girls mutually agreed to concoct a story of abuse naming the transient as the perpetrator. The transient was apprehended, and despite proclaiming his innocence, was arrested serving nearly a year in jail. The girls admitted that they made up the story to protect themselves. The evidence was primarily based on their accusations. The girls were arrested and charged with a felony.
Do rape shield laws protect accusers from being questioned about previous false allegations of rape that the accuser may have filed? The United States District Court for the Eastern District issued a ruling in a rape case that addressed that question. In this case, a Wisconsin resident Jessie L. Redmond was convicted in 1993 of raping a 15‐year‐old girl. The defendant worked as a counselor at a group home for alcohol and drug abusing teens. The conviction was based on testimony of a victim who claimed that Redmond performed sexual acts with her after providing her with cocaine. The only evidence against Redmond was the victim’s testimony. After serving eight years in prison, Redmond was released when it was revealed that the girl had previously failed to disclose to the police another rape case in which she lied about a rape.
There are certainly legal and ethical questions regarding rape shield legislation. Failure to allow evidence that might assist the defense raises constitutional questions, and might violate due process particularly the Sixth Amendment right to defend oneself. In the attempt to protect the privacy of rape victims, the defendant’s right to present evidence to the jury is denied. And, the rights of defendants charged with rape are no less important or protected than the rights of defendants accused of other crimes. To the extent that a defendant in a rape case is categorically prevented from offering types of evidence that other criminal defendants have access to suggest an egregious due process violation.
As to the ethical contention, in cases where there are questions about the accuser’s background or motives and there is flimsy evidence linking the accused to a rape offense, the defense should be able to probe into the accuser’s past background. As a matter of fundamental fairness, no law should interfere with the process, and no magistrate should obstruct the introduction of such evidence. Any evidence about the accuser’s background including sexual history should be admitted if it is potentially relevant to the defense.
If there is evidence that the accuser falsified evidence or lied about the rape, the accuser should face stronger punishment. Currently, the penalty for false reports in many states is minimal. In Colorado, where Kobe Bryant will be tried, the crime of ‘False Reporting to Authorities’ or ‘a report … to law enforcement authorities of a crime or other incident when [the reporter] knows that it did not occur’ is merely a class three misdemeanor punishable by a fine.
This punishment hardly qualifies as a deterrent to false reporting and is morally wrong and legally pathetic. However, in the California case preciously discussed, the prosecution is aggressively pursuing the young accusers and their parents for the false sexual abuse accusation.
If no means no, just when does that occur and how is it established? If it is one word against another, then it is necessary to examine the both parties involved, not just the accused. Without other evidence, how can it be determined that what occurs between two adults in a private consensual encounter is rape? Do we need signed notarized sex contracts? Or, mandate threesomes to assure no false accusations will occur?
Some courts are whittling away at the legislation. In a controversial 2003 decision from the State Supreme Court in New Jersey, the court declared that the 1994 amendments to the New Jersey Rape Shield law were unconstitutional. This ruling makes it easier for defendants charged with sexual assault to admit evidence of the victim’s sexual history (New Jersey v. Anderson Garron, 2003). The ruling permits the introduction of specific evidence of a victim’s sexual conducts, if, after a preliminary hearing outside the jury’s presence, a judge rules the offered evidence satisfies the legal criteria for admission. The ruling does not allow testimony about the accuser’s prior sexual conduct with others, only the acts engaged in with the accused.
In the case of People v. Santos (2002), an Appellate Court agreed that an accuser’s credibility can be challenged and ordered a new trial for a defendant convicted of statutory rape. In this case, a 16‐year‐old alleged sexual assault victim was examined by medical personnel, where they found evidence of recent penetration. The victim denied having any sex with anyone within 72 hours of the alleged encounter with the defendant, who was an adult. Medical results showed that she had had sex with someone other than the defendant within the 72 hour time frame.
The defendant moved to admit the evidence not to show that she was promiscuous, but to attack her credibility about the alleged event. The court held that the rape shield statute did not prohibit the introduction of her statements to the emergency room personnel about contact with men other than the defendant. The issue in the Santos case was credibility, as to what the victim told the defendant before her sexual encounter. She told the defendant she was 18, thereby bolstering his defense that he believed that she was of age when the activity took place and that he immediately ceased the activity when she said she was really 16.
The Appellate Court noted in this case that the rape shield law was not designed to preclude the admission of all evidence related to sex and that the trial court in that case improperly excluded evidence that the victim of the alleged sexual assault had made prior inconsistent statements concerning sexual relations with adult men other than the defendant when the evidence was offered to impeach her credibility. Some states have legislation allowing more liberal access to accuser’s records. In Massachusetts, courts have granted defendants in rape cases qualified access to a victim’s psychiatric records, including conversations she has had with rape crisis counselors. It is argued that such access is necessary for a man wrongly accused of rape.
Conclusion
It is not the intent to minimize the seriousness of ‘he said–she said’ rape accusations, or to suggest that all rape victims under these circumstances are unreliable and manipulative. However, in cases where there is or may have been prior relations between the parties, or if the encounter was consensual and no evidence other than an accusation is presented, there is a need to investigate the motives of the accuser as well as examining the role of the accused. Our system guarantees the right to a competent defense. And, the Government has the burden of proving a person guilty beyond a reasonable doubt. If it fails to do so, the person is innocent.
In the course of defending someone of a sexual crime lacking compelling physical evidence or evidence based on he said she said evidence, whether Kobe Bryant or someone of substantially with less fame, information about the accuser is critical. Likewise, law enforcement has the responsibility to investigate thoroughly any claims of sexual abuse where the accusations are based on one word against another. Unfortunately, law enforcement in their quest for an arrest often believe the accuser.
As a matter of fairness and sensibility, rape shield laws should to be amended if not eliminated in cases where the evidence hinges primarily on ‘he said–she said’ scenarios. The law should allow investigation into the dynamics of the encounter or credibility of the accusation if: (1) the initial encounter between the accuser and the accused was consensual; and (2) there is no physical evidence or witnesses to substantiate forced sexual relations. And, in he said she said encounters, if the accuser identity is to remain a secret, then so should the accused until after the case is completed.
Where there is evidence of false reporting, laws need to more punitive against those who undermine the justice process for personal motives, whether a juvenile or adult. Such evidence must be presented to the trier of fact, and not left to the whimsical discretion of a judge or clocked in inconsistent legalize. No law or process should prevent discovery if there is the slightest possibility that the accuser may have a mental condition, ulterior motives, or other characteristics that may assist the defense.