ANTI-VICTIM SUPPORT FOR KOBE BRYANT IS RACIST AND SEXIST

ANTI-VICTIM SUPPORT FOR KOBE BRYANT IS RACIST AND SEXIST

The gender of pro-Kobe columnists like Cathy Young, Susan Estrich and Linda Chavez gives the misleading impression that Kobe Bryant must be innocent because women don´t support "real" rapists. But the fact is -- lots of women for political reasons, and criminal defense attorneys, for money, fame or out of a sense of duty, openly support guilty rapists and are not ashamed to exploit their gender as a trial strategy in the name of "defense at any cost".

The gender of columnists and defense counsel tells us no more about Bryant's guilt than Clarence Thomas' race tells us whether his opposition to affirmative action is "good" for minorities.

The simple objective truth is -- the prosecution has a very strong case against Kobe Bryant and if what the victim reported is true, Bryant committed one of the most degrading acts of sexual violence ever reported in an acquaintance rape context.

Here´s the nonsexist version of the case so far:

As concierge for a posh hotel, the victim agreed to give Bryant a tour and escort him to his room. She brought a pen and paper to get his autograph.

Who wouldn't?

Bryant told her she'd have to come back later to get his autograph. He asked her to meet him in the hot tub. She said no and got up to leave.

Hardly evidence she was hoping for more.

Bryant imposed himself on the victim with an unrequested hug. She hugged him back -- then he kissed her. So she kissed him back.

She wasn't the aggressor - he was.

He put his hands under her clothes. She backed away and tried to leave. He blocked her way then grabbed her neck with two hands and directed her to a chair. Bryant bent her over at the waist and held her head down with one hand. His force bruised her chin. He used his free hand to lift the victim´s skirt and pull down her underpants.

She never claimed he tore her clothes.

Standing over six feet tall, Bryant held his victim's head face down in the chair while he raped her vaginally from behind. The victim was crying. She said "no" at least twice. Stories about the victim not saying "no" are untrue. In her first narrative to the police, the victim was asked what happened. She had no reason to describe what SHE said or did because her focus was on HIS brutal act of violence. When asked at the end, "why didn´t you say `no´", the victim replied that she said "no," "at least twice" including while she was crying.

The victim provided police with precise details of what happened, most of which were not rebutted during the preliminary hearing. She explained how in only five minutes Bryant literally sliced into the her vagina causing multiple painful paper-cut like rips. The victim started bleeding as a result of the friction and force of Bryant's assault. Her blood was found on the bottom of Bryant's T-shirt.

The injury is consistent with the type of harm seen in 40% of sexual assault cases where some form of vaginal trauma is inflicted. This is because desired sex, unlike rape, produces vaginal lubrication which prevents harmful friction on dry skin. She obviously was not "into it," as some claim.

After Bryant was done, he warned the victim not to tell anyone. He admonished her to get herself "cleaned up" and said "no one will believe you over me." He made her promise not to tell anyone - - then he sent her away like a piece of trash.

After leaving the room, the victim encountered an older male administrative employee with whom she had no working relationship. Having just been threatened by Bryant not to tell anyone what happened and no doubt in shock from the crime, she said nothing and did not "seem" upset.

Minutes later, the victim reported the crime to the bellman, a young college student with whom she worked regularly at the front desk. He described the victim as very shaken up and terrified.

The next morning, the victim told her parents and they called the police. The victim's statements were scrutinized and credited by numerous professional law enforcement officials with extensive experience assessing sexual assault claims. The victim also submitted herself to a rape kit examination at a hospital.

With commendable candor, the victim told police she had consensual sex two or three days earlier. There is no evidence her prior sexual encounter produced any physical injuries to her vagina. "Bombshell" allegations of the victim having sex with "three men in three days" were proved false when Bryant's attorneys' effort to persuade the judge there was such evidence was rejected on the second day of the hearing.

The judge ruled the case is strong enough to send Kobe Bryant to trial for rape - even though the victim did not testify in person. The judge also found the vaginal injuries consistent with force and nonconsent.

All this evidence notwithstanding, some still see the case as a "he said - she said".

In fact, if we focus on Bryant´s conduct rather than the victim´s, it´s fairer to call the case a "he fled - she bled."

Bryant immediately took off for California the day after the incident - earlier than planned. This is at least suspicious behavior if not overt consciousness of guilt.

Bryant was not a "family man" on the night in question. Newsweek reported he was on the outs with his wife and was contemplating divorce.

Bryant's first statement to the public was outright denial -- then it changed to an admission of "adultery." Truth doesn't change.

Bryant was only too happy to use his celebrity to announce publicly that he was "innocent" and "didn't force [the victim] to do anything against her will." But he wouldn´t make those statements under oath or subject himself to
cross-examination.

Only two people know exactly what happened - but only one of them allowed their statements to be scrutinized at the preliminary hearing. Kobe Bryant had the right and the opportunity to tell his story but he refused. Given that the victim's statements came in through the hearsay testimony of a police detective, Bryant had a good chance of winning an outright dismissal of the charges if he had taken the stand in person because live testimony tends to be stronger than hearsay. The problem is, his story would have to make sense and be credible. That he did not take the stand tells us what his lawyer thinks of Bryant´s story.

Hardly a show of confidence, Bryant's lawyers filed a special motion to have the statements Bryant gave to the police hidden from the public and submitted to the judge in chambers. Bryant's lawyers were only too happy to fill the public trough and potential jury pool with irrelevant and outright false information about the victim's prior sexual behavior, but they insisted that Bryant's statements about the crime itself be heard in secret.

When only two people know the truth and one hides his story from public view -- it's obvious where the truth lies.

Notwithstanding the obvious, Bryant´s victim has endured outrageous attacks on her integrity because she had consensual sex days before the rape and because semen from that encounter seeped into the clean underpants she wore to the hospital (semen can stay in the body for five days or longer).

Criticism of the victim is an irrational manifestation of the same sexism we complained about thirty years ago -- and thought we´d fixed with rape-shield laws.

The truth is, we didn't fix much. Shield laws served as statutory band-aids that pushed sexism underground and changed the language but not the behavior of defense counsel. Instead of stating openly that a woman's past sexual
behavior shows she consented on the night in question, defense counsel today make up pretextual reasons for why the evidence is relevant to show "motive or bias" or to "explain a physical finding."

And because victims have no voice in the criminal justice system, pretextual claims that exploit gender bias are often successful because no one is present in court to argue zealously on behalf of women as a class.

Worse, there are no sanctions when defense counsel blatantly violate rape-shield laws and even intentionally lie about a victim´s past.

The illegal conduct of Bryant's lawyers, including that they ignored a clear court order not to use the victim´s name at the hearing, has been celebrated by some as "brilliant" strategy. But any idiot can violate the law and lie about a victim in the name of winning. It doesn't mean you´re a good lawyer -- it means you're a jerk.

The real issue is -- would we feel the same way about the "defense at any cost" philosophy if the victim was black, the defendant was white and a defense attorney claimed the victim was not credible because of the color of her skin?

Prejudice is prejudice. And Bryant's lawyers are playing the gender card in a big way. Even those who could care less about sexism need to care when defense counsel exploit bigotry because if gender prejudice is fair game in this case -- then religious prejudice is fair in the next case and race prejudice after that, etc.

Ironically, some who criticize the victim's credibility based on gender prejudice also claim to care about the fight for civil rights and social justice. The problem is -- judging the victim based on false, inflammatory and irrelevant personal information serves the very ills civil rights activists claim to disdain.

We can't have it both ways. Using sexism as a strategic tool to ignite public furor in Kobe's case ensures the perpetuation of all prejudice in larger society. Kobe must be proud to know that his trial strategy is making it even easier for black men to be disproportionately targeted for prosecution, incarceration, etc.

Wendy J. Murphy
New England School of Law, Boston