The Rape Shield Law

This has been in the press quite a bit over the last year thanks to Kobe Bryant. It is something I've had to deal with on a few occasions in my practice, but not in the manner that one would think. In general, Rape Shield laws were created to prevent evil defense lawyers like me from asserting that a woman walking down the street, yanked in to an alley and raped asked for it due to the fact that she had sex with just about every guy who ever approached her.

Personally, I couldn't imagine many cases where involving stranger rape (as opposed to date rape) where I would begin to consider putting a woman's sexual history on trial. I'm not saying I can't think of a scenario, because I'm sure someone will tell me one, but in general, it is hard to imagine one where such a defense would go very far.

Now, in cases of date rape, I happen to think that a woman's sexual history is a little more relevant, if we are dealing with an issue of friends or acquaintances who have sex and trying to determine when and how the woman said "no." Don't get me wrong, I recognize that "no means no," and I certainly don't quarrel with that. On the other hand, it seems that there frequently exists quite a bit of ambiguity in these situations. One person says one thing ("I said no"), the other says something else ("she was into the whole time, but freaked out afterwards"). I'm not sure how relevant sexual history is in that situation, but imagine if the person claiming rape had a history of having sex and then feeling bad about it, or coming back to the other party angry about the encounter. In other words, it would possibly be illuminating to know a little about the background of the person making the complaint.

Certainly, that has been the situation in the Kobe case, where we clearly have a complainant with a plethora of issues: suicide attempts, numerous partners, celebrity, and undoubtedly other things that we don't know about (and may never know about). Let's just imagine that all of this information was kept out of the Kobe trial, and all we had was her simple assertion that she went into his room and he attacked her, without any context of her prior or subsequent actions, or of her mental state before, during and after the event. Certainly, it would be hard to believe that Kobe received a fair trial under these circumstances.

I have a theory, especially in these "consent" or "date rape" cases (as opposed to a case of identification, or where there is admittidly no relationship of any kind between the two parties), about the rape shield laws. I could easily see my next closing argument going something like this:

We have heard the complainant come in here and make her accusation, that the defendant had sex with her even though she said no. Let's be clear, the law exists that I am not allowed, pursuant to the rape shield law, to find out about her background and determine whether or not she has done anything like this before. I cannot discover anything about previous partners by her, I cannot present any evidence that would show what her personality is like, other than how she appears here in court. Now, it is clear that the manner in which someone presents themselves in court does not necessarily reflect the manner they are outside of court, the DA has noted this while talking about the fact that the defendant may look nice here, but out of court he was a predator. Well, even though the law is what the law is, you should not hold it against my client. The fact that my client is not allowed to find out about the person's background does not mean that you should assume only the best - that she is of unimpeachable character, because we haven't heard anything to the contrary. Rather, you could just as easily presume the opposite. The law gives you contradictory orders - don't look into the complainant's background, and presume the defendant innocent. Therefore, while we can't speculate about her background, we can presume that the defendant is innocent and give him the benefit of that doubt and find him not guilty, having no particular reason to trust this witnesses account due to a law that has been created to otherwise protect her.

Now, I've never tried this one before, and it clearly needs some refinement, but on the other hand, it seems something like this could work out.

Any thoughts?

Great post by Uncivil Litigator

The Uncivil Litigator

Uncivil Litigator wrote an absolutely heartwarming post about getting his wife permanent residency in the US. It is one of those cases where the resolution was quick, and it had a huge personal impact on an individual's life. As far as I can tell, this doesn't usually happen in the practice of civil law, which is one of the reasons I love criminal law so much, because nearly every case has that kind of an effect. His story is far more dramatic than just about any case I've handled, though, and it is so well written it could very well bring tears to your eyes.

Great post UCL, I'll be checking back on your site frequently.

All Peterson, All the Time

This weekend I was at a dinner party, and a news show producer from one of the big 4 networks was there. This person is inside the courtroom in the Peterson trial every day. Her take: Peterson may be guilty as sin, but the prosecution has done a piss-poor job, Geragos has done a great job, and if things keep going the way they are (including with Amber Frey), Peterson's going to walk.

I tried to explain to her that she doesn't understand the dynamic of being in a trial where the defendant has been found guilty by the press long before the case ever got to trial. In cases like this (the David Westerfield case in San Diego a couple of years ago included), you can have very weak facts, but if they have been convicted in the press already, weak facts don't matter. Juries will find someone guilty on a sniff of guilt, even without compelling reasons. So many of these cases that have been reversed for late findings of DNA exonerating the defendant have been cases where the facts were really weak, but the case was high profile (at least in the area where the trial took place) and a rabid press convicted the defendant long before trial. The result, juries figure where there's smoke there's fire, and there would never be a case pending unless the police and press were really sure. Also, jurors have heard so much one-sided evidence in cases like that that they have formed a predisposition against the defendant, no matter what comes out at trial (and this is subliminal, so they may not even recognize it in order that it can be rooted out during voir dire).

What do I think the result will be? I think Peterson's going down. The contrast with his case and someone like OJ's is important - he is not a celebrity. I don't think he has a prayer.

Anger

Boy, I was really pissed off during that last post, wasn't I? I could delete it, or amend it, but hey, that's how I was feeling when I read that article, so that's how I'll leave it. If I offend, oh well. It's not personal.

CNN.com - FDA fears drugs a terror target - Aug 12, 2004

CNN.com - FDA fears drugs a terror target - Aug 12, 2004

I found this one on Washington Monthly, formerly CalPundit.

This may be the key to the whole presidential election, right here in this article.
I sincerely believe that we have been lied to by the Bush administration about terrorism for political purposes. We know for a fact that Bush used Iraq and false issues of the Department of Homeland Security in the Congressional midterm elections in 2002. By linking Senators like Vietnam war-hero Max Cleland to Osama Bin Laden and Saddam Hussein for his opposition to stripping government workers in the new DHS of unionization rights, Bush signaled that he was ready to play politics with national security. He claimed that Democrats who opposed his vision of the DHS weren't interested in defending America. Never mind, of course, that he had opposed the creation of the DHS despite strong Democratic support for it in the wake of the 9/11 attacks, only to jump on the bandwagon when he realized political hay could be made of it by inserting the political poison pill of slashing worker's rights in the legislation.

This, however, is the worst. There is no doubt that the Bush administration opposes allowing people bringing prescription drugs into the country from Canada and Mexico for one reason and one reason only: it will diminish the profits of the pharmecutical companies that give so generously to the Republicans. But now, the head of the FDA, the people who are supposed to protect us from bad drugs and food, are trying to claim that this opposition is due to national security. Imagine that, they will lie about anything to make a political point. When people claim that Bush knew about 9/11 before it happened (something I don't believe), they need merely point to the truly venal manner in which Bush has used the threat of terrorism to ram through his political agenda - things he would have supported in the absence of 9/11, but that now justifies with 9/11. Why, if Bush will claim that something as morally indefensible as banning people from buying the same drugs in Canada that they can buy here at half the cost is due to terrorism, what won't he lie about and claim that he is doing it to deter terrorism.

Is there a person alive who really believes that Al Qaeda is sitting around planning major attacks on the US with Lipitor to attack the high cholestoral of Americans who try to buy their drugs in Canada? Oh, I'm sure, they are just chomping at the bit, perhaps they're setting up their own terrorist front organizations as cross border pharmacies, just to ensure that only Americans die. This has been such a threat over the years, I mean, we've done so much to try and warn Canada about the imminent danger they face.

The public needs to understand, Bush will do ANYTHING to win, he will lie, he will cheat, and most importantly, he will claim that everything he does is to prevent terrorism, no matter how unrelated. This is because, ultimately, the only reason he is still in the race today is because 19 evil people flew planes into 3 buildings and into the ground and he managed to use the subsequent fear of a nation as a whip to keep us in line. You want to see the real George Bush in the face of threats? Watch the 7 minutes of reading "My Pet Goat" when informed that the 2nd plane had smashed into the WTC and America was under attack, 7 minutes without Karl Rove to tell him how to use that to his advantage. Watch fratboy Bush land on the aircraft carrier with the large sign "Mission Accomplished" behind him as the ultimate photo op, 700 dead bodies ago. Watch high school Bush invite the terrorists to "bring it on" 600 dead bodies ago.

Please, please, please, whatever you do, let's save this country and get him out of office.

UPDATE - Holden of Public Opinion Blog is with me on this one. Thanks Holden!

MSNBC - Bryant prosecutors seek indefinite delay of trial

MSNBC - Bryant prosecutors seek indefinite delay of trial

I never thought that Kobe would be convicted, I just couldn't imagine that a star would get convicted on the weak facts this case presented, and I always wondered why the case was filed in the first place. My theory was that the DA was forced to file due to the Police's arresting Kobe. By filing the case and having it proceed at least past preliminary hearing (and a finding that there is probable cause), the county would be pretty much immune from a wrongful arrest charge which would be much more valid if they never filed a case. At the very least, I think that the DA had to file just to back up the Police and not leave him hanging after he arrested Kobe.

I always wondered how they would back out of the case, and this appears to be the way. It looks like they are going to announce that the victim doesn't want to proceed due to the publicity and anguish she's going through. Does she really think that what she's going through right now can even compare to what it will be like to be on trial? Does she really think that she will be able to keep her identity secret against one of the most well known stars in the world? And, if she's so interested in that anonymity and doesn't want to have this terrible publicity, coupled with the rulings that rape shield will not apply to her sexual conduct within 72 hours of her contact with Kobe, does she really think that filing a civil lawsuit will make it all go away?

Clearly, this civil lawsuit has given the defense more than it could ever ask for in their case, and I just can't imagine that the case will ever proceed at this point.

Of course, this blows my "dream" scenario. My scenario involves something akin to human sacrifice. I started practicing criminal law (and law in general) around the time of OJ Simpson trial, and for years, probably to this day and beyond, defending people accused of crimes has been made much more difficult as a result of that case. The perception of most people in society is that a guilty man went free on a misreading of reasonable doubt, bad rulings by the judge, poor prosecution, etc.... This is a perception I've been having to deal with for years, with jurors, the public, and equally important, with lawmakers and the electorate. The number of idiotic "tough on crime" laws that have passed due to OJ has skyrocketed. In California, they tried to get rid of the hearsay rule for domestic violence cases (this appears to have been overturned by the new Supreme Court case Crawford v. Washington), plea bargaining discretion, and other things. Judges are more afraid of crossing DAs than ever. In other words, the prospect of a man everyone knows is guilty sitting on the golf courses of America has screwed up my profession, and hurt other people who are not as guilty as OJ was.

Thus, I figured Kobe could be the anti-OJ. I thought that if the judge kept out all of the victim's clear mental problems (like her suicide attempts and other cries for attention) and her sexual activities around the time of the rape (how many guys did she have sex with in those days? Did she actually have sex with someone AFTER she was raped? Hardly the actions one would associate with a rape victim), and if Kobe was convicted as a result, then we would have a clear case where much of society figured there may be an innocent man sitting in prison for a rape he didn't do. If Kobe got life, and actually began serving it, imagine what I could argue in future cases. "Ladies and gentlemen of the jury, you don't think that an innocent man can be convicted of a crime he didn't commit? Just consider Kobe Bryant, who IS STILL IN PRISON FOR THAT RAPE WE ALL KNOW HE DIDN'T DO."

Well, it appears that, luckily for Kobe, this will not be happening.

Republicans helping Nader

Obviously, there is nothing "wrong" with Republicans helping to put Nader on the ballot in many of the key "swing" states. That being said, there is clearly something unseemly about Nader accepting that help, he has to recognize that he is being used as a pawn by the Republican party to help re-elect Bush.

Here's the question I'd like to know, though. If the Republicans think it's that important for our democracy to get Nader on the ballot, do they also support his right to participate in the presidential debates? I would assume they don't, after all, the last thing they want is 2 people bashing Bush at the debates. Imagine if Bush had to debate against Kerry and Nader, he wouldn't be happy (I suspect he would decline to debate instead).