Colorado ruling tests rape-shield laws Step toward equity in rape trials

August 3, 2004

A Colorado judge issued a highly controversial decision late last month on a matter that should not be controversial. Judge Terry Ruckriegle ruled that Kobe Bryant, who is facing four years to life in prison for an alleged rape he claims was consensual sex, can introduce evidence that his accuser had other sexual encounters in the 72 hours before her medical examination for the alleged assault.

Various reports in the press have labeled the decision a "bombshell for prosecutors" that "threatens all women"; Ruckriegle has been likened by the New York Daily News to a man who has "tiptoed into a minefield."

This is not the old-fashioned "tar the victim" defense, however. Bryant's defense team believes that the microscopic vaginal injuries the prosecution claims were suffered in the alleged assault were instead the product of various consensual sexual encounters.

Ruckriegle's decision followed another controversial ruling granting a defense motion that Bryant's accuser not be referred to as "the victim" in court. This motion was contested by both the prosecution and by victims' rights organizations, which filed amicus briefs and complained that Ruckriegle's decision created an anti-woman double-standard.

That these decisions have drawn controversy demonstrates how rape-shield laws have stacked cases against accused men. They also reflect the success of victim advocates in minimizing and concealing a real and damaging problem: Many accusations of rape are false.

Craig Silverman, a former chief deputy district attorney in Denver who was known for his zealous prosecution of rapists during his 16-year career, told me during an interview on my radio show in March that false rape accusations occur with "scary frequency."

Silverman, as a regular commentator on the Bryant trial for Denver's ABC affiliate, noted on the station's Web site that "any honest veteran sex assault investigator will tell you that rape is one of the most falsely reported crimes" and cited a Denver sex-assault unit commander's estimate that nearly half of all reported rape claims are false.

Several studies have confirmed Silverman's contention. For example, according to a nine-year study conducted by former Purdue sociologist Eugene J. Kanin, in over 40 percent of the cases reviewed, the complainants eventually admitted that no rape had occurred (Archives of Sexual Behavior, Vol. 23, No. 1, 1994).

An independent review (by Dr. Charles P. McDowell of the U.S. Air Force Office of Special Investigations) of a 1985 Air Force study published in the Forensic Science Digest found that 60 percent of the 556 rape accusations examined were false.

The skepticism with which the public, the media and legal analysts have viewed Bryant's accuser is not solely attributable to Bryant's star power, nor to the fact that the prosecution's case appears to be marginal.

It is also a reaction to a series of unfair sexual assault trials. For example, in 1997 sportscaster Marv Albert was accused of assault and battery during a sexual encounter with a woman with whom he had had a 10-year sexual relationship. Albert sought to introduce evidence that his accuser, who had been in a mental hospital six weeks before the alleged assault, had previously made false accusations against men who had left her, as Albert was planning to do. When Albert's request was denied, he was left unable to defend himself. Facing a possible life sentence, he chose to plead guilty to misdemeanor assault.

In December, the Arkansas Supreme Court denied an appeal by Ralph Taylor, who is serving a 13-year sentence for rape. The court held that evidence of the victim's alleged prior false allegations of rape was inadmissible because it was sexual conduct within the meaning of the state's rape shield statute. In that case, the defense proffered the testimony of two friends of the alleged victim, both of whom claimed that she had previously falsely accused another man of raping her. The court explained that admitting such evidence could "inflame the jury."

These cases and others illustrate that the well-intended laws enacted over the past three decades to protect women have become tools of injustice wielded to gain convictions in questionable cases. While policies protecting accusers from unnecessary humiliation should always be a part of our justice system, we must never lose sight of the more important goal of assuring that those accused are not unjustly convicted.

The Bryant case represents a turning point in the history of rape trials, as the judiciary, the public and the media have finally begun to pay proper attention to the real danger of innocent men being convicted of rape.

Glenn Sacks

Survivors must not be twice victimized by Terry O'Neill and Melanie Stafford

Glenn's thesis is pitted against NOW's in the Chronicle's web-based vote on the Bryant decision--to vote, click here.

To comment on the article, send letters to letters@sfchronicle.com.

Post-debate comments from Glenn:

While to the Chronicle's credit they fact-checked my column carefully, my opponents got away with one in their statement "Today, according to the U.S. Department of Justice, 1 out of 4 women is raped; each of us knows someone who has or will become a survivor." They don't list a source but this probably comes from the DOJ's oft-quoted November, 1998 "Prevalence, Incidence, and Consequences of Violence Against Women: Findings of the National Violence Against Women Survey." Problems include:

1) My opponents misstated the study's findings. The study found that nearly 1 out of 4 women surveyed had been the victim of rape or attempted rape, or had been physically assaulted by an intimate partner at some point in their lives. The vast majority of the positive results were for domestic violence, not rape.

2) The same survey found that 1.5 million women and 835,000 men had experienced physical violence by an intimate. Domestic violence is always wrong, but the vast majority of these acts--both when committed by women and by men--were minor in nature.

3) Most of the "rapes" were committed by husbands or co-habitating partners. I don't know what the exact wording of the DOJ's questions were, but while there are husbands who rape their wives and men who rape their co-habitating partners, I suspect that many of these results stem from the expanded feminist definition of rape. These nonsensical "rape" definitions sometimes include "he verbally pressured or guilted me into having sex" or "I had sex because he gave me alcohol or drugs," or others.

In the article I quoted Craig Silverman, a former Colorado prosecutor known for his zealous prosecution of rapists, who says that false accusations of rape are common. As they say, it took Nixon to go to China. You can listen to his interview on my radio show at Kobe Bryant, Rape Shield Laws, and the False Accusations Problem (3/21/04).

As I've stated on the air before, I have no position as to Bryant's innocence or guilt. As I mentioned in the article, the case against him appears marginal. Also, I'm suspicious of an accuser who is mentally unstable--she was hospitalized for a suicide attempt two months before the alleged rape.

And, as I discuss in the article, false accusations of rape are common. Still, the feminists are correct that there are some powerful and/or famous men who don't know the meaning of the word "no." A talented and pampered athlete such as Bryant might fit the description.

As I've also discussed on the air, I do deeply oppose any harassment of the alleged victim. See Sacks Blasts Those Harassing Kobe's Accuser  (IFeminists, 7/29/03).