KOBE AND THE CONSTITUTION 575

I have wanted to write this article soon after Kobe Bryant alleged rape of an Eagle County, CO women hit the media. Now, that the alleged victim seems to be demurring and backing out of the case, it is a good time to look carefully at it. I believe that we need to rethink how we view these cases and take a fresh look at rape shield laws.

I understand the motivation behind the passage of rape shield laws. All 50-states excluding Arizona have rape shield laws on the books, and the federal government enacted it version in 1978. However, we need to think about these laws and their effects. When we do, we soon realize that we have dilemma: How do we protect an innocent rape victim from further emotional abuse and at the same time protect the accuser who is presumed innocent until found guilty?

I am not an apologist for the behavior of many boorish NBA super-stars, and I am not defending Kobe Bryant’s sexual activities either. However, it seems that the rape shield laws have inadvertently been tilted the scales of justice.

Before I make my case about revisiting these laws, allow me to say that I am a liberal—one of the very few who is willing to come out of the closest and use the “l”-word to describe himself. In addition, I believe that males have consistently mistreated females since the time our forebears lived in caves. Men have abused, mistreated, raped, and murdered women, and that treatment is inexcusable.

Further, even though we live in our more enlightened time, we still oppress women. Why? Tragically, the answer is that men can get away with it. This abusive treatment must stop whether it is overt or covert. It isn’t good for women nor does it do anything for positively for men. Regardless of how the abuse is administered, it dehumanizes both parties and needs to cease.

            Ironically, I believe that liberals are in part responsible for the situation that we find ourselves in today with rape shield laws. Surely, many liberals pushed for enacted of rape shield legislation to protect women. However, in the well-intended rush to protect one group, we have inadvertently violated the constitutional rights of others. Kobe Bryant and other men are entitled to due process and the presumption of innocence until proven guilty in a courtroom.

            Our problem is that we have set up one group’s right over another group’s rights. With these rape shield laws, we are revisiting Animal Farm. In George Orwell’s classic, the animals establish an equalitarian government after the overthrow of the tyrant farmer. In this utopian democracy, animals are equal, but some animals are more equal than others. In Bryant’s case, just because the accuser claims rape, it doesn’t mean that rape occurred. Why is it that a record of her past sexual relationships are by fiat off limits? Don’t these laws add an unexamined or adjudicated presumption of innocence for the women?

            It is just as possible that the accuser in the Bryant case wasn’t raped but claimed she was for other reasons—money, notoriety, psychological anomalies, etc. On the other hand, it is possible that he did rape her. This is where the courts come in. However, shouldn’t each be given a level playing field to arbitrate their dispute without prejudging either party?

            In America, we presume the innocence of a person until that person is proven guilty. It is difficult to defend oneself when there may be relevant information that is kept out of court just because she is a women who may or may not have been raped. Why is the accuser more equal than the accused? Doesn’t giving her special status as to admissibility of evidence put the accuser at a disadvantage?

            In our democracy or down on the Animal Farm, there can be no true freedom or equality if some are more equal than others.

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