Discussion List for campus-based and allied personnel working to end gender-based violence on campus.

Dear colleagues;

Let me start by agreeing that the resolution int he Kobe Bryant case is 
unconscionably unjust -- but I also have to add that the outrage at this late 
date 
is curious given the complete silence of most victim advocates from day one.

The National Organization for Women said "no comment" to almost every vile 
and sexist tactic of the defense (they wrote one weak press release after 
about 
a year of hell for the victim) -- and very few rape crisis centers or similar 
types of entities said anything publicly in support of this woman.

There were no protests, no op-eds -- it was truly shameful.

I'm glad there's outrage now -- but it's too little too late I fear. 

I hope the conversation in the aftermath of this debacle includes a critique 
of the causes of that silence and I hope new groups are formed that can speak 
more freely and with appropriate outrage in the future when this happens 
again 
-- and it will.

On to the case -- 

The "apology" by Kobe Bryant was indeed a confession.  Although in a few 
states the defendant can assert a "reasonable mistake" regarding consent 
defense, 
this is not so in Colorado.  Thus, he could NEVER have asserted such a claim 
to the jury -- but, as has been noted, it sells well int he court of public 
opinion because people assume the mistaken mindset of the rapist can trump 
(or at 
least dent) the unmistakable lack of consent on the part of the victim.

I've written on this topic and feel strongly that the victim community needs 
to be proactive in addressing the attempt to create "mistake" defenses as a 
matter of criminal common law.  Such an effort has been underway in 
Massachusetts for a long time by the organized public defenders office -- and 
thus far 
they have failed.

If the value of personal autonomy is to be respected, then there can be no 
respect for the "mistaken" belief of a rapist.  To give any weight to such an 
idea is to say that a woman's fundamental freedom to decide what to do with 
her 
body is controlled, in part, by another person's perception.  The bottom line 
is, as a matter of law and policy, the only person whose state of mind 
matters 
is the one whose body is being encroached upon.  Remember the old adage "my 
right to swing my fist ends before it hits you in the nose" -- this goes for 
penises, too (substitute vagina for nose).

Jeffrey Toobin has been a shill for the defense since day one.  He is 
absolutely wrong about the law and he should be ashamed of himself for 
misstating 
such an important doctrine.

He also repeatedly states that the victim had sex after the rape and before 
she went to the hospital -- but this is absolutely false.

Anyone who reads the transcript of the so-called "expert" for the defense, 
Elizabeth Johnson, who claimed the presence of another man's semen is 
evidence 
of post-rape sex, would know there is no evidence to support this statement.

The other semen was clearly old.  Only three or four sperm were identified 
and they had no tails.  (most people know that one ejaculation typically 
contains hundreds of thousands of sperm).  And, this semen spot tested 
negative for 
the presence of acid phosphatase, a presumptive test that surely would have 
been positive if the semen had been deposited only hours before the rape-kit 
was 
done.

The expert further theorized that the other man's semen must have been 
deposited post-Bryant because there was more semen from this other man than 
from 
Bryant.  But this makes sense when one also acknowledges that Bryant was not 
dumb 
enough to risk pregnancy -- which is why he ejaculated on her face.  

Hardly evidence that the other man's semen was fresh.

One of the lessons learned here that DNA hype in rape cases has caused a lot 
of trouble.  We are so good now at finding even the smallest traces of DNA in 
examination of women, they are faced with the burden of "explaining" away all 
evidence of prior consensual, lawful (need I add - constitutionally 
protected) 
sexual activity because this evidence is found "at the crime scene".  

We need to be more sophisticated about the role of DNA in rape cases.  
Clearly the presence of a hundred men's DNA tells us nothing about what 
happened on 
the night in question IF, as is true in about 85% of cases, the defense is 
consent.

This was the defense in Bryant's case, yet the focus on this woman's "crime 
scene" evidence was intense when it should have been ignored.

Some argued the evidence was relevant b/c she had vaginal tears that "might" 
have been caused by other sexual activity.

But let's assume there was no evidence of another man's semen.  Couldn't the 
defense always argue that "other" sexual conduct "caused" the injuries -- 

The point is -- it might be fine to ask whether the injuries were caused by 
something other than the assault, but the defense can't just make it up -- 
yet 
that's exactly what they did in this case.

The victim had consensual sex three days earlier -- sex that caused no 
injury, no pain and no bleeding.

That a hired gun "expert" was paid to say prior sex "might" have caused the 
injury is hardly fair or even probative.  The victim knows better than any 
"expert" whether she had prior injury -- and while there is a cosntitutional 
right 
to a fari trial, this does not include the right to hire an "expert" to lie 
or even speculate under oath.

Remember -- she had two one centimeter long tears and many smaller ones.  
Look at a ruler and see how long a centimeter is - then think about the area 
of 
the body we're talking about -- and decide whether such an injury is 
consistent 
with consent -- as the defense argued.

That part of the body -- the posterior fourchette -- is difficult to tear 
which is why about 95% of rapes involve no genital injury at all.

This type of injury is caused by force and friction -- friction because of 
the absence of lubrication which is usually present with consensual activity. 
 
The injury has nothing to do with size -- another myth (racist myth I might 
add).

The other aspects of the case that demonstrate its strength include that the 
victim reported it right away and that she had a bruise on her jaw that 
corroborated her description of how the rape occurred - that she was bent 
over the 
arm of a chair and raped from behind while Bryant held her head down - his 
thumb clearly responsible for the bruise on her left jaw.

Also - Bryant lied to police.  He first said he had no sexual contact with 
the victim.  Then when police told him they had a warrant to take DNA 
samples, 
he changed his story and said there was contact -- and he basically confirmed 
what the victim told police -- except he said it was consensual.

When police asked how he knew it was consensual, Bryant said he could tell 
"by the look in her eye".  (I don't know how he could see her eye when he had 
her head stuffed down in a chair).

Bryant also told police he would "pay her off" to prevent any criminal 
charges.  (He certainly got this right -- )

I am including below an oped I've written on the nature of the dismissal.  
I've also published an oped on the ridiculous jury selection process.  Please 
let me know if you'd like to see the latter piece -- this is already too long.

Wendy Murphy

THE DISMISSAL IS A CRIME -- AND EVERYONE'S GUILTY

As if a rape and a payoff aren't bad enough, the worst crime was committed by 
the prosecutor and the judge in the Kobe Bryant case, both of whom shirked 
their responsibilities to the public and to the integrity of the justice 
system 
by allowing the victim to "choose" not to testify.

This was not the victim's civil lawsuit, it was the public's criminal 
prosecution.  Just like people who witness bank robberies and murder, victims 
of 
violence are required to take the stand and tell the truth.  The victim no 
more 
had the power to refuse to testify than she had the power to command that the 
case be prosecuted.  By letting the victim "choose" not to testify, the 
prosecutor and the judge endorsed what the public rightly sees as outright 
corruption.

You can almost understand why the victim would want to come up with some type 
of "deal", but when the very people responsible for protecting the integrity 
of law itself participate in checkbook justice, the harm to society is 
incalculable.

Public respect for the rule of law in criminal cases has been teetering 
around the hopper for a long time.  And now that an alleged rapist has 
apparently 
bought his way out of a serious prosecution with the whole world watching, 
this 
colossal waste of public resources is sure to move us further in the wrong 
direction.

Checkbook justice rips at the core of what it means to live in a civilized 
and just society.  That a deal struck was struck in this case is Exhibit One 
in 
the proof of why prisons are disproportionately full of minority men.  Yet 
some of the very people who claim to care about this social problem will 
celebrate Bryant's "right" to buy his way out of this case.  Shame on them.

Promoting corruption isn't the only problem.  By dismissing such serious 
charges after the victim endured relentless attacks on her person, her 
privacy and 
her character, the judge and prosecutor have effectively rewarded 
intimidation tactics and ensured that more victims than ever before will 
suffer the same 
indignities.

Some will claim the defense did a great job by achieving this result for 
Bryant, but the truth is, any idiot can pay off a victim.  No need for legal 
skills or intelligence; wealth and a lack or moral fiber will do.    

The public has a right to assume that criminal cases will be resolved fairly, 
with a full airing of the truth.  But in this case, not only was justice 
denied, the complete picture of evidence that points at Bryant's guilt will 
never 
come to light because so much of it was ruled "too prejudicial" for pretrial 
public disclosure.

Without at least a full understanding of the evidence, the public will never 
know how much of an injustice the dismissal really was and whether tax 
dollars 
were truly wasted.  

Instead, the public will assume, as they should, that the victim cared more 
about money than justice, and that Bryant must have been guilty because he 
was 
willing to cut a deal to make it all go away.  

Still, the prosecutor was right to bring the charges as this is among the 
strongest non-stranger rape cases ever reported - which probably explains 
why, in 
his "apology" statement, Bryant all but admits his guilt. 

The saddest part of the story may be that the victim is foolish enough to 
think money will fix her problems.  It is more likely she will live in 
existential hell for the rest of her life because she will forever be known 
as the type 
of person portrayed in the tabloids as a mentally ill, drug addicted 
promiscuous woman who extorted Kobe Bryant, falsely accused him of rape and 
couldn't 
even keep her underwear clean.

The victim's only hope for regaining her dignity was to take the stand and 
tell the truth.  Win or lose, she could have held her head high.  Instead, 
she 
used the criminal justice system as leverage to ratchet up the value of her 
civil case and then she sold out.  For this, she should hang her head in 
shame.

The one glimmer of hope in all this is that, as with most major disasters, 
meaningful change may follow.

Lawmakers around the country should enact statutes that compel victims and 
witnesses to testify in all criminal cases.

Only when hush money and intimidation incentives are removed will the justice 
system function as it should.  Until then, payoffs and the practice of 
"victory by intimidation" will be the name of the game.

There should also be a political response from the public.  No prosecutor or 
judge who would indulge such tactics deserves a position of public trust.

It's tough enough to fight crime when victims and witnesses are reluctant to 
testify simply because they can't take time off from work or they fear 
retaliation.  This case adds fuel to that fire because it went away for all 
the wrong 
reasons. 

The well-being of all people and the very integrity of law demand better.

Wendy Murphy
New England School of Law, Boston