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Rape NutsKobe Bryant's trial will showcase our mixed-up rape laws.

By Dahlia LithwickPosted Wednesday, July 30, 2003, at 7:10 PM ET

Long before the first juror is selected, the nation is making up its mind about Kobe Bryant. Web sites condemning his accuser as a whore are proliferating. (You can even vote on whether Kobe or his alleged victim is lying.) Without a filament of evidence, journalists have split: Some call the young woman his "accuser"; others say "victim." Some complain that he's already been tried and convicted in the media; others complain that she has been raped again in the media.

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How can anyone be so certain about what happened between these two adults in the light of a hotel minibar? The answer has little to do with this specific case and everything to do with our national hysteria over rape law—a hysteria that rape accusations are now easier than ever to make and easier than ever to prove, that rape convictions can now be based on the barest assertions, that punishment for rape is harsher than for anything save murder. We have created a system that is bad for everyone. The legal rules for rape have been "reformed" to the point that defendants have few of the usual presumptions of innocence while victims are still humiliated and exposed at trial.

How did this happen?

Throughout most of Western history, penalties for rape have been excessive. Usually, in both Britain and America, the punishment was life imprisonment or death. Feminists have long contended that this toughness wasn't rooted in compassion for the victim but in male property rights. The chastity of a man's wife or daughter was so valuable that its theft was more serious than other kinds of theft. The other paternalistic feature of all rape prosecutions was that the victim was inevitably put on trial herself. Until the 1970s, no woman could prevail at trial unless she showed she'd used "utmost force" (i.e., fought the attacker to near-death) and unless she had a corroborating witness. Moreover, she could not claim her husband had raped her (husbands were immune from rape charges in most states until the late 1970s), and jurors were routinely instructed that women were liars and hysterics. Trials were gruesome explorations of the victim's sexual history, and convictions were rare.

Understandably then, feminist reformers had a lot of work to do when they set out to make the system more women-friendly in the 1970s. They managed to enact state laws that actually protected—rather than victimized—the women who'd been raped. Rape shield laws saw to it that evidence of past sexual conduct was not admissible. It was no longer necessary to show bruises to prove force. Corroborating witnesses were not necessary for a conviction (which is why the accuser's testimony alone could send Bryant to prison for life). It should have been the dawn of a whole new day for womankind. But these feminist reformers also made things worse in many ways—perhaps because the feminists had a conflicting second agenda: to promote women's sexual freedom. Complaints of date rape and acquaintance rape soared. A legal regime that barely did an adequate job prosecuting stranger-in-the-bushes rape was suddenly pressed into service to unearth subtle legal nuances of "power" and "consent."

One result of this new legal emphasis on whether the woman consented is that inevitably, it is her sexuality and her conduct that is still put on trial. Bruises and a torn dress are things the law can understand. Whether a woman said "no"—or said "yes" but meant "no"—these new questions involve subtlety and context and past history. What was most shaming about earlier rape trials—the "did she ask for it" inquiry—is in some ways still the cornerstone of modern rape trials.

Another problem with the '70s reformers was that they couldn't decide whether rape victims should be treated like any other assault victim or as eggshell victims with unique needs. Some states amended statutes to destigmatize rape and treat it like any other assault—rape as a crime of violence. Kobe Bryant has been charged under Colorado's "sexual assault" statute, not a "rape" law. That is why penalties for rape decreased in some places after the '70s—feminists wanted them to be more in line with assault penalties so that juries would be more inclined to convict.

But the paternalistic belief that rape was unlike other forms of violent assault put simultaneous pressure on the law from the opposite direction. Victim's rights groups and law-and-order conservatives worked hard to keep sentences draconian—which is why the sanctions for rape are still so out of line with any other form of assault and why probationers and parolees are now labeled sex offenders for life. These opposing groups also worked to protect rape victims in new ways. Rape shield laws and judges who preserve the anonymity of the accuser cut against the legal presumption of innocence for defendants, make it harder for them to know and cross-examine their accuser, and otherwise give the victim privilege over the accused.

The result of all this compensating and overcompensating for the historical imbalances of rape law is that somehow the law transformed from insulting blanket paternalism to flabby ineffectual maternalism. Sanctions remain too extreme, and the protections afforded the victim are also too extreme. Legal rules that degraded women—requiring a corroborating witness, for instance—have been replaced with rules that endanger men—allowing conviction based on bare testimony. And all this happens in the face of penalties that haven't changed enough in 300 years.

The old tendency to put the victim on trial to determine if she had loose morals has simply become a new system of putting the victim on trial to determine if she's the sort of girl who might have consented. Ironically, empirical evidence shows that all these reforms have not significantly increased the incidences of reporting, prosecution, or conviction for rape.

We have reformed, rewritten, and rejiggered rape law, but it is still fundamentally not "fair" in the sense of providing any real legal certainty. In the end—and unless Bryant's accuser has some shocking physical evidence—it is still her word against his. Unless we legislate mandatory threesomes, or start videotaping trysts the way some police departments now videotape criminal interrogations, what happens between two horizontal people in the dark is ultimately unknowable. While it is true that some women lie, and it is also true that some men are sexual monsters, it is not at all true that the hodgepodge that is modern rape law can discern which is which.

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Dahlia Lithwick is a Slate senior editor.

COMMENTS

Remarks from the Fray:

It's seemed to me all along—that is, ever since date rape erupted as a social issue and sexual-assault laws were amended to accommodate that—that this type of assault and … stranger-in-the-bushes rape are so different from each other in legal and social nuance that it is inappropriate for the legal system to treat them as indistinguishable, either in method of proof or in consequence after conviction. They present, at a minimum, entirely different legal issues. I think they present different social issues too. The question of fact in stranger-in-the-bushes rape is rarely whether or not a rape occurred, as physical evidence sufficient to remove doubt about this usually exists. Almost always, the issue is solely the identity of the rapist. In date rape, the reverse is true. It's almost never in dispute that the accuser and the accused were together consensually. And because of the existence of physical evidence of sexual intercourse, and these days because of DNA identification, rarely is it disputed that sexual intercourse occurred. The issue is entirely whether the intercourse was consensual, and resolution of that issue turns wholly on three facts that cannot be proved scientifically: the state of mind of the accuser, the accused's perception of that, and the reasonableness of that perception. Complicating this, the accused's social milieu may affect the last of these. The evidentiary issues, certainly—and, I would argue, as I think Lithwick does, the very nature of the respective crimes themselves—differ so significantly from each other that the legal system's legal fiction that treats them as identical is illogical. And, who knows; this high-profile case, and commentary it's spawning such as Lithwick's that diagram this, may prompt legislators and their constituents to notice. May I suggest now a high-profile spotlight on the evidentiary weaknesses of criminal convictions based entirely on eyewitness testimony often given under duress, often later recanted?…

--BeverlyMann

(To reply, click here)

…The law works best when it ratifies values society already has. It is less effective at imposing values on society, even when the values it is intended to impose are clearer than they are in this case. Laws that provided very harsh penalties for sexual assaults that were very difficult to prove are much less of a problem in societies where sex outside of marriage carries a stigma and sex by force an even stronger one. A society where sex outside marriage is considered normal is bound to have a lot of women assaulted by men who go unpunished, a lot of men who knowingly or not step across a line with very little premeditation and pay for it with decades in prison -- and a lot of cases like Kobe Bryant's.

--Zathras

(To reply, click here)

They have negligent homicide. When a man falsely assumes the consent that the woman never gave, give the prosecution and the jury a lesser offense of "negligent rape" or even "negligent sexual trespass" to consider which has a lesser burden of proof. Let men know that even if they think they have permission, if the woman is viewing things differently, they stand a chance of being charged. If you want to be safe make sure you get explicit consent. When real life is too murky to distill into the current legal categories, it is time to unfurl your vocabulary and create new ones.

--RufRuf

(To reply, click here)

(7/31)

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