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Those accused of rape have rights, too

THE JUDGE in the Kobe Bryant sexual assault case has ruled that the basketball star will go to trial even though the evidence against him is slim. Meanwhile, the hardball tactics of the defense, which has requested access to the accuser's health records and has disclosed that the young woman had had sexual intercourse with two other men in the three days preceding her encounter with Bryant, have come under harsh criticism from victim advocates. "Trying to shift the blame is a standard tactic for rape defendants, but this was a new low in attacking the victim," Cynthia Stone of the Colorado Coalition Against Sexual Assault told the Denver Post.

Advocates and many commentators warn that victims of sexual assault will be discouraged from coming forward if they know they can be publicly smeared or grilled about embarrassing, intimate details of their private lives. That's an understandable concern. But we must also remember that respect for the privacy of an alleged victim cannot supercede respect for the defendant's civil rights.

Attitudes toward sexual assault victims have changed greatly in the past 30 years -- and thank goodness for that. In the early 1970s, juries in many states were still commonly instructed to consider evidence of "unchaste character" (such as going to bars alone or using birth control) as detracting from a woman's credibility or suggesting that she was likely to have consented. Rape shield laws forbidding the use of the complainant's sexual past as evidence are rightly seen as an important accomplishment of the women's movement.

And yet many people, including feminists such as Columbia University law professor Vivian Berger, have cautioned against going too far in protecting the accuser at the expense of the accused. In some cases, the woman's past -- including her sexual past -- can indeed be relevant to the man's guilt, particularly in he said/she said cases without much physical evidence.

What if the woman has a record of making false accusations of rape or other crimes? What if she is so mentally unstable that she has trouble distinguishing between imagination and reality? What if she has engaged in sexual acts that could provide an alternate explanation for the physical evidence which the prosecution is using to prove sexual assault?

These are wrenching questions. Obviously, a woman with a history of mental illness (such as, apparently, Kobe Bryant's accuser) or of substance abuse or even of lying about rape, could still be a rape victim. Obviously, the prospect of having embarrassing details of one's life exposed in court -- let alone the media -- may discourage victims from coming forward. Just as obviously, keeping relevant evidence from the jury may result in sending an innocent person to jail. Some victim advocates worry that even if the woman in such a case has not been raped, she may be brutally abused by the legal process. They seem to forget that being falsely accused of rape is a terrible form of abuse as well.

Sometimes, the broad application of rape shield law has almost certainly resulted in miscarriages of justice. In New York in 1998, Columbia University graduate student Oliver Jovanovic was convicted of kidnapping and sexually abusing a Barnard College student and sentenced to a minimum of 15 years in prison.

While the defense argued that the encounter involved consensual bondage, the judge disallowed the use of e-mails in which the alleged victim had discussed her interest in and past experience with such activities. The conviction was eventually overturned by a court of appeals, which ruled that Jovanovic was denied the chance to present an adequate defense.

Rape is a despicable crime, and an accusation of rape should be taken very seriously -- but the rights of the accused should be rigorously protected. After the 1997 trial of sportscaster Marv Albert, defending the judge's decision to admit compromising information about Albert's sexual past but not about his accuser's, feminist attorney Gloria Allred decried "the notion that there's some sort of moral equivalency between the defendant and the victim." Yet as long as the defendant hasn't been convicted, he and the victim are indeed moral equals in the eyes of the law.

It's frightening to put oneself in the place of a sexual assault victim who finds the intimate details of her life paraded in public. But it's at least as terrifying to imagine that you, or your husband or brother or son, could be accused of sexual assault and denied access to relevant information that could make the difference between guilt and innocence.

Cathy Young is a contributing editor at Reason magazine. Her column appears regularly in the Globe.

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