A seismic shift in sex-case law
EAGLE, COLO.--Many people think of the escalating Kobe Bryant coverage as must-flee tv: an incessant barrage of mostly meaningless "news" and analysis surrounding the sexual assault charges against the Los Angeles Lakers star guard. But to some, what is fast becoming one of the most publicized rape cases in history offers a chance for more than titillation. In fact, Patty Occhiuzzo Giggans, director of the Los Angeles Commission on Assaults Against Women and coauthor of the book What Parents Need to Know About Dating Violence, says she's "actually looking forward to it."
That's because unlike most rape cases, which are typically plea-bargained into obscurity, the likelihood that the Bryant case will go to trial--a preliminary hearing is scheduled this week--offers Americans what Giggins calls a "teachable moment." It's a chance, she says, to "openly confront what rape really is." Over the years, the legal definition has changed substantially. But public opinion and jury behavior have yet to catch up.
Prompted largely by the feminist movement of the 1970s, antiquated state laws that once required eyewitness corroboration and physical resistance by victims to prove a charge of rape have been replaced by statutes that protect the alleged victim's sexual history and require prosecutors to prove only that sex was not consensual. According to the National Crime Victim Law Institute, all 50 states now have rape shield laws that protect the alleged victim's sexual history, and 38 have adopted similar consent provisions. The latest update, passed this year in Illinois (a similar change is under consideration in California), states that rape charges can be prosecuted even when consent is given at first but later withdrawn during sex. Those changes in the law were proposed after California's Supreme Court in January rendered a precedent-setting decision in a date-rape case; the judges ruled that "a withdrawal of consent effectively nullifies any earlier consent and subjects the male to forcible-rape charges if he persists." State supreme courts in five other states have issued similar rulings.
Most of the facts in the Bryant case won't become clear until the trial begins, probably early next year. But those that have emerged thus far suggest it will hinge on just such issues. There is no dispute, for instance, that Bryant and the alleged victim, a 19-year-old hotel worker, became acquainted at the Colorado's Lodge & Spa at Cordillera on June 30 and that, after giving Bryant a tour of the hotel, the woman willingly accompanied him to his room. Sources quoted in the Vail Daily said that a sexual encounter began consensually--something Bryant has already stated publicly--but that the woman later demanded that he halt his advances. The alleged victim has never commented publicly.
Despite updated sexual assault laws, which in Colorado implicitly include the right to withdraw consent, many potential jurors still believe that "she's responsible because she went up to his room," says former prosecutor Karen Steinhauser, a visiting professor at the University of Denver. "The laws may have changed, but societal attitudes haven't very much."
Stunning stats. A 2002 statewide poll by the Texas Association Against Sexual Assault found that while most respondents understood that "no means no," 47 percent believed that allowing touching under the clothes constitutes consent to intercourse, and nearly a third thought that agreeing to go back to someone's home after a date also signals consent. More striking: About 25 percent of respondents said a woman cannot claim she was raped if she didn't actively fight off the sexual advance. Responses did not differ significantly by gender.
Observers say such realities can badly undermine cases in which the sexual activity is initially consensual. If Bryant's alleged victim "admits that she consented at all, it's over," asserts attorney Roy Black, who successfully defended William Kennedy Smith in his 1991 rape trial. The notion that withdrawal of consent constitutes rape, Black says, "will never be a convincing argument to a jury."
Yet prosecutors point to various circumstances in which the withdrawal of consent has yielded convictions--cases against men who refused to wear a condom, for instance, or who pushed the sexual boundaries beyond what was agreed to. "There was a time when, if a couple was having consensual sex but the man then forced the woman to have anal sex, we didn't feel we could successfully bring those cases," says Mary Keenan, a district attorney in Boulder, Colo. "But jurors are better educated these days, and we're more willing to prosecute." Kobe Bryant is finding that out.
With Angie C. Marek
This story appears in the October 13, 2003 print edition of U.S. News & World Report.