*** ORBUSMAX GUEST OP/ED ***
Fairness Over Feminism - By Nicholas G. Jenkins
July 29, 2004
Finally, a judge got something right.
Last week's decision by the Kobe Bryant judge to allow evidence of the
alleged victim's sexual activities in the 72 hours prior to her medical
examination was great news for Shaq's former sidekick. Despite
prosecutorial objections that it would run afoul with Colorado's rape
shield statute, Kobe the Kid's defense team can now introduce evidence
that his accuser had carnal relations with two other men in the 57 or so
hours leading up to the Bryant bone dance -- and possibly one other
fella in the 15 hours between Kobe and her exam -- to explain vaginal
tears found during her medical exam. If "beyond the shadow of a
doubt" is still the standard in Colorado, prosecutors have to worry
about more than just shadows. Right now, their case looms under cover
of night.
For all the hullabaloo it received in the media, however, Colorado
District Judge Terry Ruckriegle's decision not to apply the rape shield
law to the 72 hours immediately preceding the accuser's medical exam
shouldn't have been a difficult one. At least not on paper. Rape
shield laws are supposed to prevent unscrupulous prosecutors from
introducing charges of accusers' past promiscuity in their cases in
chief in hopes of gaining "she's a slut" acquittals. The rationale is
that the prejudicial power of an alleged victim's past, private sexual
shenanigans outweighs its relevance - big time. That's a good rule, and
it's what made it easy for Judge Ruckriegle to exclude the vast majority
of the accuser's sexual past on privacy grounds. (And what a past it
must be.)
But not even privacy rights are absolute, and not all sex is as
irrelevant as last summer's sand trap stunt. When, as here, an accuser
makes her private parts an issue by pointing to physical injuries
therein, her privacy rights go out the window. The cause of those
injuries - be it a barroom bop or a bicycle bar - must become fair game.
If it didn't, then the rape shield law would allow a rape defendant to
be convicted based on injuries caused by someone else. That doesn't
make much sense, and would violate a defendant's Sixth Amendment right
to confront his accuser to boot. In ruling as he did, the 56-year old
jurist said as much.
If this seems like a judge using a technicality to stack the deck for
the rich guy, it isn't. To illustrate, suppose you're on trial for
assaulting me and the only physical evidence the prosecution has is my
imaginary black eye. Suppose further that you knew I had been in two
barroom brawls the night before, and that I had taken a few blows in the
mug therein. Aren't those barroom brawls relevant to determining how I
got the black eye? Wouldn't your think it unfair if I were free to tell
the court you gave me the black eye, but you were prohibited from
introducing evidence of my previous scruffs? I do, and since there is no
difference constitutionally speaking between simple assault and sexual
assault, it would be unfair in a rape case, too.
It all seems obvious enough, but Judge Ruckriegle still deserves kudos
for not allowing Kobe's accuser to duck behind Colorado's rape shield.
Feminists and other left-leaning special interests don't look at rape
defendants with the same affection as Guantanomo detainees, and media
commentators and producers of talking head shows have their numbers on
speed dial. In making his ruling, Judge Ruckriegle had to know he would
get lambasted for being "insensitive to rape victims" or some such
gobblygook. Indeed, the media is already looking askant.
Gary Tuchman said on "CNN Newsnight" that Judge Ruckriegle's ruling came
"despite" Colorado's rape shield law, as if he flippantly ignored its
existence. (For the record, he held hearings for nine days and
listened to 27 witnesses before issuing his eight-page decision.)
The AP Online lamented that "Accuser's Past Fair Game in Bryant Case," a
stunningly misleading headline almost "Dewey Defeats Truman"-esque in
its attention to detail.
CNN "Saturday Live" anchor Fredricka Whitfield characterized the judge's
ruling in the introduction to her roundtable as "Colorado's rape shield
law thrown out, sort of." It wasn't "thrown out, sort of" at all: the
judge ruled that the accused's other 19 years' worth of sexual history
is not admissible because of the rape shield law. (From the sounds of
it, the accuser's history makes Paris Hilton look like a Catholic
librarian, but I digress.) Of the 72 hours immediately before the
medical exam, he held the law just didn't apply. I guess "thrown out,
sort of" passes for nuanced thinking in Info-babe land.
Judge Ruckriegle's ruling wasn't the politically correct decision. But
it was the correct one. In a day when a jurist's adherence to feminist
dogma as is important to his career as adherence to the Constitution he
is sworn to uphold, Judge Ruckriegle put principle over politics. Here's
hoping his brethren on the bench will start following suit.
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Nick Jenkins runs the website TheFence.com.