there is a relatively low conviction rate for rape cases (something approximately 40% if i remember correctly)
if she is worried about the impact of the presumed failure to convict (which is NOT the i read the article, btw, because at the end of the article she seems more concerned about the impact on kobe bryant) but assuming this is indeed her concern i.e. adversely affecting the victim protection law (something i'm not sure i agree with either as it relates to the facilitating of the false rape charge, imo, but that's another discussion entirely ) ....to that i would simply say to estrich, yes it would be nice for you to have tidy cases that do not call the rape shield law into question, but that the ONLY criteria as to whether the charge should be prosecuted is was there according to the prosecutor a credible rape charge presented. i certainly hope her only motivation isn't to further trash the victim (implying she is somehow "undeserving" of the rape shield more because the case in her eyes now is unwinnable, not so much because it doesn't have merit)
to read her article (assuming she isn't in possession of facts not generally known about the case) one might almost conclude that because of the perception that the victim fits the nuts and sluts description, she's coming down on the side of bryant.
it seems like a highly contradictory stance.
all i'm saying is i'm giving the prosecutor and the judge the benefit of the doubt as to whether the alleged crime should have been charged and bound over charge should have been made
I'm guessing that she may be talking about-the Colorado rape victim protection law, which could end up altered by the outcome of this trial.
that's why i was confused by her "bad cases make bad law" statement.
if anything the rape protection law could possibly be strengthened, considering how her name has been so widely disseminated.
bottom line for me here is the charge was made, the court deemed the charge worthy of trial, and it does no good to prejudge the case.
this is what estrich wrote about it in july, before more and more of the case was made public, it is highly unlikely that the young woman wasn't made aware of having her life under a microscope (as estrich describes here)....if anything the fact that she is willing to submit herself to that kind of scrutiny imputes to her believability.
unless of course you believe she lying and making a false charge.
i frankly do not know.
(note that she almost argues for the limiting of the rape shield law when she talks about the potential "one night stand" when she asks "wouldn't you want to know"?... but doesn't quite seem to be able come to terms with the fact the law itself should possibly revisited for that very reason of the false rape charge that i believe she implies in the latest article)
usatoday.com
Posted 7/27/2003 6:58 PM
Rape shield laws aren't foolproof
By Susan Estrich
Nearly 30 years ago, I sat in the back of a police car as the Boston cops warned me about what would happen to me if I officially reported that I'd just been raped.
"Are you ready to go on trial yourself?" they asked.
"Do you understand what defense lawyers could do to you?" they asked.
I was 20 years old at the time. I thought I was the victim. I didn't understand why my life would be put under a microscope.
There is a 19-year-old woman in Colorado who is just beginning to learn what that kind of scrutiny involves, particularly in a high-profile case. She has accused the Los Angeles Lakers' Kobe Bryant of sexual assault. The anonymity that major news organizations have afforded her will be meaningless by the time this trial is over. In most rape cases, the victims are victimized yet again. The law protects her only up to a point.
It took me less than five minutes at my computer to learn her name, address and phone number. There are reports of her supposed attempted suicide. Her "friends" have been all over the television. Radio host Tom Leykis is using her name. The supermarket tabloid Globe published her picture, with just part of her face obscured. And it is only just beginning.
In the years since I was raped, almost every state in the country, including Colorado, passed rape shield laws to protect victims from a second, unnecessary humiliation. Courts and legislatures redefined the crime to eliminate the requirement that women resist to the utmost to prove non-consent. "No" no longer means "yes" as a matter of law.
But legal reform does not always protect women alleging rape from the defense claim that they're either unstable or promiscuous, and therefore should not be believed when they claim they said "no." The issue today is no longer whether "no" means "yes," but whether she really said "no."
In cases such as this one, in which the key issue is consent and the key question, after all the other evidence is considered, is still who to believe, the defense of choice is increasingly the old standard of attacking a woman's stability — and dragging in her past consensual relationships to at least raise a reasonable doubt as to consent. I have termed it the "nuts and sluts" defense, a new label for one of the oldest tactics in the book. But the fact that our understanding of rape has expanded gives this old and discredited approach new power.
It's easy to argue that a woman's sexual history is irrelevant when a man has a gun or a knife to her throat or, as has been charged in this case, the man uses physical force. What difference does it make how many times you've consented to sex in the past with men who didn't use a threat or force? Who needs psychiatric records in a case involving a stranger when the main issue, now resolvable through DNA evidence, is whether you have the right man?
But imagine for a minute that it was your brother, your son or you who had been charged with rape by a woman after a "one-night stand." Imagine you were Bryant, or you were trying to defend him. Wouldn't you want to know if the woman had a history of one-night stands with other men in similar circumstances — or if, on the other hand, she was a virgin? Wouldn't you want to know if she had a history of mental instability that might lead her to consent to sex and then lie about it?
In the wake of this month's tragic accident at the Santa Monica, Calif., farmers market, the first thing police investigators did was try to determine whether the driver had a history of accidents.
I'm certain Bryant's lawyers have private investigators conducting a similar sort of investigation in the hopes of proving a "pattern" of similar conduct that would allow for an exception to the rape shield law or a challenge to its constitutionality. Even if the evidence is not ultimately admissible in court, it will be in the papers, on television and online in an effort to shape public opinion.
Moreover, in Massachusetts, courts have granted defendants in rape cases qualified access to a victim's psychiatric records, including conversations she has had with rape crisis counselors, concluding that without such access it may be impossible for a man who is wrongly accused to raise reasonable doubt.
The danger, of course, is that guilty defendants will use the threat of humiliation to discourage legitimate victims from reporting sexual assaults. There is a reason that rape continues to be among the least reported of all crimes. At the same time, our criminal justice system is rightly based on the premise that it is better that 10 guilty people go free than one innocent man be convicted.
The challenge of protecting the legitimate victim while ensuring that an innocent man can raise the reasonable doubt required for acquittal requires the sort of careful balancing that sometimes takes place with wise judges in court, but never in media trials and tabloids.
In the 23 years I have worked in this area of the law, countless young women have come to my office seeking advice and counsel about whether to report their victimizations. I always tell them what to expect, that the laws we worked so hard to change will protect them only to a point. I find myself still warning them, in much the same way the police warned me.
I wonder if anyone warned the young woman in Colorado?
Susan Estrich is a syndicated columnist and a member of USA TODAY's board of contributors. |
