Nine-tenths of the law in high-profile cases is judicial bias. Illustrative is the Colorado Supreme Court’s 4-3 ruling in Colorado vs. Bryant (July 19) restraining the media from publishing lawfully acquired transcripts concerning the sexual conduct of the alleged rape victim in the prosecution of professional basketball’s super nova Kobe Bryant. The opinion reads like a moral crusade on behalf of oppressed women undaunted by the possibility of false rape accusations.
Mr. Bryant’s defense pivots on consent. The female accuser’s prior and subsequent sexual liaisons, Mr. Bryant argues, bears on the likelihood of consent to his admitted overtures. Accordingly, evidence of the alleged rape victim’s sexual casualness should be admissible at trial.
On the other hand, reporting and prosecuting genuine rape might be discouraged if the proceedings routinely exposed the victim’s entire sexual life to the world. In response, Colorado enacted a rape shield statute. It presumptively deems irrelevant to a rape prosecution the alleged victim’s sexual history. But the presumption can be overcome through an in camera (closed) proceeding if the defendant convinces the judge prior sexual conduct is “relevant to a material issue to the case.”
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Rape shield laws like Colorado’s, however, war with the presumption of innocence. The statutes were fueled by alarming figures suggesting rape is vastly underreported. The Colorado Supreme Court in Bryant fretted over a study declaring that, “Rape crisis centers tend[ed] to support … that at least 90 percent of actual rapes [were] never reported.”
The U.S. Justice Department insisted in 2002 that “[m]ost rapes and sexual assaults [are] not reported to the police…. Sixty-three percent of completed rapes, 65 percent of attempted rapes, and 74 percent of completed and attempted sexual assaults against females [are] not reported to the police.” Fear of embarrassment, shame or humiliation was offered as an explanation for the staggering nonprosecutions of rapists.
But these figures accept as gospel the alleged rape victim’s version of events with no opportunity for defenses or cross-examination. Due process and reliable conclusions demand more than unilateral and summary pronouncements of guilt like the Queen of Hearts’ in “Alice in Wonderland.”
The underreporting of rape that agitated the Colorado Supreme Court might be largely inflated, vastly overstating the urgency of rape shield statutes to ensure genuine rapists are apprehended and punished.
The statutes themselves assume guilt before trial. They presumptively place off-limits to the defense the sexual history of a rape victim before proof of the crime. Ordinary jurors will be inclined to believe a rape defendant guilty if his accuser is a victim.
In Mr. Bryant’s prosecution, the trial court held closed (in camera) proceedings on June 21-22 regarding the “relevancy and materiality of evidence of specific instances of the victim’s… prior or subsequent sexual conduct, or opinion evidence of the victim’s … sexual conduct.” On June 24, the court reporter mistakenly sent the transcript of the secret proceedings by electronic transmission to seven media entities, including AP, CBS, Fox News and the Los Angeles Times. The error was swiftly discovered and reported to the chief judge of the District Court, W. Terry Ruckriegle, that same day.
A judicial order was summarily entered prohibiting the media recipients from revealing any contents of the transcript. On July 23, the chief judge ruled the defense could introduce direct or circumstantial evidence pertinent to any sexual conduct of Mr. Bryant’s accuser during the 72 hours preceding her physical examination by doctors on July 1, 2003, one day after the alleged rape. Before that ruling, the Colorado Supreme Court had generally affirmed the chief judge’s gag order.
Writing for the majority, Justice Gregory J. Hobbs Jr. acknowledged prior restraints against publication are saddled with a heavy presumption of unconstitutionality under the First Amendment. Indeed, the U.S. Supreme Court has uniformly overturned prior restraints, even when national security was involved in the Pentagon Papers case of New York Times Co. vs. United States (1971). A prior restraint escapes First Amendment condemnation only if it is narrowly tailored to advance a state interest of the highest order.
Justice Hobbs maintained Colorado’s rape shield statute protected the privacy of alleged rape victims and promoted the reporting and prosecution of the crime. The statute, however, also encourages false accusations and convictions, which are illicit constitutional objectives. The goal of the government is not to win a case, but to see justice done. And on that score, rape shield laws are dubious.
In the Bryant prosecution, moreover, the alleged victim’s privacy had already been unbosomed at the time of the gag order. Last March, her mother sent the trial judge a letter complaining of death threats, harassment, and irksome surveillance of her daughter by the media and Mr. Bryant’s private investigators. Every nook and cranny of the case and the participants had been examined in the press and broadcast media beyond saturation. No woman with functioning cerebral faculties could have believed her privacy would survive a rape accusation against a Los Angeles Lakers icon.
Chief Judge Ruckriegle, furthermore, failed to find gagging the press from disclosing the in camera transcript would be essential to prospective reporting and prosecuting rape against other victims. The court reporter’s error was unlikely to be repeated. And alleged rape victims invariably confront the possibility under Colorado’s rape shield statute that their sexual histories will be disclosed because of a judicial finding of relevance and materiality to the defense. Thus, a 72-hour widow on the sexual conduct of Mr. Bryant’s accuser was opened by the trial judge’s July 23 ruling.
The unprecedented gag order upheld in Colorado vs. Bryant, contrary to voluminous U.S. Supreme Court decrees, betrayed a pronounced judicial bias favoring the accuser over the accused in rape prosecutions. The decision demonstrates no principle of law is safe when a case enters the domain of passion or sensation.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.
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