- The Washington Times - Saturday, September 11, 2004

Dismissal of rape charges against basketball superstar Kobe Bryant has triggered a lively debate on how the decision will affect future sexual assault cases.

Radical feminists were in a frenzy that the judge allowed DNA evidence that painted Mr. Bryant’s accuser as a floozy. Sasha Walters of the Chicago-based Rape Victim Advocates exclaimed: “This decision will be seized on by defense attorneys around the country. It will take us back to when the emphasis in a trial was on the actions of the victim.”

University of Colorado Law Professor Paul Campos shot back, “If you are not Kobe Bryant, you could find yourself in a case where you may well have to negotiate a plea in order to avoid spending the rest of your life in prison.”

But Ms. Walters and Mr. Campos both missed the larger issue. Over the last 20 years, radical feminists have worked behind the scenes for an extreme makeover of the rape laws.

Rape, of course, is a horrific crime. And rape is just as terrible as making a false accusation of rape.

False allegations of rape occur more often than most people think. One study found 41 percent of women who reported rape to the police later admitted the charge was false. And a 1996 Justice Department report concluded, “In about 25 percent of the sexual assault cases referred to the FBI … the primary suspect has been excluded by forensic DNA testing.”

So our legal system’s purpose is to determine the truth of the claim, and to mete out punishment where punishment is due.

For years, the law defined rape as “forced sex without consent.” All that changed in 1979, when New Jersey passed the so-called N.O.W. act. Under that law, “sexual assault” was defined as “an act of sexual penetration with another person [when] [t]he actor uses physical force or coercion.”

Imagine parsing that in front of a sympathetic jury. With such an expansive and ambiguous definition, many if not most instances of nonmarital intercourse could be construed to constitute rape.

It wasn’t long until that line of thinking made inroads into the laws of other states. In 1996, the Cato Institute surveyed the damage caused by the 1979 New Jersey law. The report concluded greatly expanded definitions of rape represent “dangerous moves to eviscerate the presumption of innocence in sexual assault cases”.

Bruce Fein, a constitutional law expert, is even more pointed in his critique. He has compared the due process violations of men accused of rape to the “unilateral and summary pronouncements of guilt like the Queen of Hearts in ‘Alice in Wonderland.’ ”

How did the evisceration of rape law play out in the Kobe Bryant case?

First, many have criticized District Attorney Mark Hurlbert for filing a case deeply flawed from the very beginning. Mr. Hurlbert reasoned dropping the case would send the wrong message to future rape victims. But did he consider pursuing a weak case against an innocent man might also send a bad message?

For months, the DA repeatedly referred to the accuser as the “victim,” a word carrying a strong presumption of Mr. Kobe’s guilt. Finally, Mr. Bryant’s attorney had to petition the judge to order the DA to stop using that V-word.

Why not refer to the accuser by name as usual in legal contests? Colorado law prohibits releasing the accuser’s name, presumably to protect the woman from further embarrassment. But isn’t a man accused of rape entitled to the same consideration? Doesn’t that double standard violate the principle of “equal treatment under the law”?

Worst of all are the rape shield laws, which presume a woman’s sexual history cannot be considered as evidence in a rape trial. But the accuser’s concurrent sexual activities had an important bearing in this case. Rape shield laws war with the presumption of innocence and ultimately encourage false accusations.

Part of the agreement withdrawing the case required Mr. Bryant to apologize to the accuser. But given the scurrilous campaign by radical feminists to undermine the constitutionally protected right to due process, perhaps they owe Mr. Bryant an apology.


Mr. Roberts is a Washington-area writer.

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