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Kobe Bryant: Alice-in-Wonderland Justice
September 8, 2004
by Carey Roberts

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

Radical feminists were in a frenzy that the judge had decided to allow DNA evidence which painted 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 Walters and Campos both missed the larger issue. Because over the past 20 years, radical feminists have been working behind the scenes to do an extreme make-over of the laws of rape.

Rape, of course, is a horrific crime. And the act of 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 that 41% of women who had reported rape to the police later admitted the allegation was false. And a 1996 Department of Justice report concluded, "in about 25% of the sexual assault cases referred to the FBI,.the primary suspect has been excluded by forensic DNA testing".

So the purpose of our legal system is to determine the truth of the allegation, 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 that being parsed in front of a sympathetic jury. With such an expansive and ambiguous definition, many, if not most instances of non-marital 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 that greatly expanded definitions of rape represent "dangerous moves to eviscerate the presumption of innocence in sexual assault cases".

Bruce Fein, an expert on constitutional law, 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 that was deeply flawed from the very beginning. Hurlbert reasoned that dropping the case would have sent the wrong message to future rape victims. But did he stop to consider that pursing a weak case against an innocent man might also be sending a bad message?

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

And why not refer to the accuser by name, as is the usual practice in legal contests? The reason is, Colorado has a law that prohibits releasing the name of the accuser, presumably to protect the woman from further embarrassment. But isn't a man who is 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 counted as evidence in a rape trial. But the accuser's concurrent sexual activities had an important bearing on this case. Rape shield laws war with the presumption of innocence, and ultimately encourage the filing of false accusations.

As part of the withdrawal agreement, Bryant was required to offer an apology to the accuser. But given the scurrilous campaign of radical feminists to undermine the constitutionally-protected right of due process, perhaps it is they who owe a letter of apology to Mr. Bryant.

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