Guest Column: Kobe and the Judge’s Dilemma


Laws are still born in the absence of a human face. We all know that the Rape Shield Laws were developed to insulate a rape victim from undue harassment, humiliation and legal abuse. Thus, a rape victim could not be questioned about her past or subsequent sexual conduct, unrelated to the alleged rape in question. To allow otherwise would deter victims from coming forward. The following illustrates how humiliating and demeaning such cross examination could be:

“You say this was a nonconsensual act of sex with my client? This was not your first sexual encounter was it? As a matter of fact, you had frequent sex with other men? When was the most recent act of sex you had? On how many occasions have you had sex in the past six months? Is it fair to say that you enjoyed these sexual encounters? You do like sex? So you are telling this jury that you like sex, have had sex with many other men … you don’t know exactly how many … is that correct? But somehow you are claiming, in this case, that you did not give consent to my client? Is that your story? You do understand that you are under oath, do you not? Oh, by the way, how many times have you had sex since the time you claimed my client forced himself upon you? With whom?”

You can see how these questions have the effect of placing the victim on trial. In short, the victim was raped a second time by the justice system. The Rape Shield Laws are designed to prevent such abuse. In the Kobe case, the prosecution is relying on alleged physical evidence of trauma to the victim to corroborate her allegations of forcible rape. He is not satisfied that he could win in a case of “He said, she said,” without something more. That something more is physical evidence of trauma.

To deny the defense the opportunity to show that the trauma came from someone other than Kobe would be a denial of due process and clearly constitute reversible error. The defense quest to show that she allegedly had sex “shortly before” her encounter with Kobe and “shortly following” said encounter is relevant and material to the question of how she sustained the trauma. This is not a gross fishing expedition, but a focused inquiry based upon preliminary findings that allegedly other men’s semen was found on the alleged victim’s underwear and body within 24 hours of the alleged rape.

The more difficult issue will be the allowable scope of the cross examination of the alleged victim. No one witnessed the sexual encounter. There are no eyewitnesses other than the alleged victim and Kobe. Her credibility is central to this case. How far then will the defense be allowed to pursue her sexual encounters with her boyfriend and others? Should the defense be allowed to question the alleged victim on how many times she allegedly had sex with her boyfriend or someone else? What kind of sex did they have? How rough was it? What were the positions of the parties, etc.? These questions, too, are demeaning and humiliating. But are they necessary because they are relevant and material to her credibility?

The judge must rule on whether it is fair; not in a vacuum, but in the face of organized criticism that is sure to come from credible, powerful and influential organizations such as victims’ rights groups, politicians and popular celebrities.

Add to the mix the fact that Eagle County is a small place with long memories, and you can imagine the pressure on the good judge to make the correct decision for the right reasons. Yes, his career is at an important crossroad. And while it may be difficult for the layperson to know whether his decision is based on a sense of justice and fair play or political correctness, he will know it and live with it for the rest of his life.