Sunday, August 08, 2004

The Shield That Failed

Dahlia Lithwick has an interesting column in the New York Times today about rape shield laws and their limitations. For some reason - perhaps because it was appearing in a paper which rarely strays from left-wing conventional wisdom on social matters - I expected it to be a strident argument for the implementation of even tougher laws, but I ended up pleasantly surprised.

Rape shield laws prohibit the use of an accuser's prior sexual history to undermine her credibility, with rare exceptions. These laws were urged by feminist reformers in the 1970's because until that time the central inquiry in rape cases was whether the accuser was a tramp who, essentially, "asked for it." Cordoning off her sexual past from public scrutiny was vital, and in classic "stranger in the bushes" cases it made good sense. Who cares whether a woman had sex four times that night? No assailant had the right to force a fifth. But the problem in acquaintance rape cases - centered as they are on nuanced questions about the accuser's consent and the defendant's understanding of that consent - is that the legal inquiry does come down to whether she asked for it. Almost literally. And all the evidence of her sexual behavior - in this case the physical evidence implicating the accuser's other encounters that week - thus becomes highly relevant.

This well-intentioned reform in our rape laws has led to two unappealing alternatives: Either the defendant's legal presumption of innocence is flipped on its head, since rape shield laws unambiguously deny him access to potentially exculpatory evidence, or - as a practical matter - the woman's sexual history goes on trial regardless, permitting humiliating public scrutiny often likened to a second rape.


When the national media expose a woman's sexual history, it means the difference between shaming her in her community, and doing so worldwide. Whether it takes place in court or on cable television, by detailing the sexual conduct of Mr. Bryant's accuser in the 72-hour period surrounding her rape, the press will eviscerate the entire purpose of the Colorado rape shield law, a fact sadly noted by the presiding judge, Terry Ruckriegle, last week.

For Mr. Bryant's part, it's not surprising that when the traditional defenses in a he says/she says case became unavailable to him in court, those same defenses were trotted out for the national press. As far as Mr. Bryant and his counsel are concerned, from the moment the district attorney peered into the flashbulbs and labeled him a rapist, his life was over, whether he was convicted or acquitted. You just don't meet a lot of babies named O. J. anymore.
If there's one point I take issue with in Ms. Lithwick's article, it's her claim that there's something intrinsically "shaming" or "humiliating" about having a woman's sexual history undergo scrutiny in court or in the media, a notion which flies in the face of the feminist claim that there's nothing shameful about female sexuality, and that women shouldn't have to be either virgins or whores; I doubt that there are many men in the world who'd be ashamed to let the world know they'd have very active sex lives. This looks to me like a classic case of wishing to have it both ways - when it comes to accusations of rape, women should be treated like fragile little flowers whose sexual reputations are in need of preserving, but when issues like contraception, dress codes and patterns of speech come up, suddenly it's a good thing when a woman is as lewd as a construction site laborer in a Hooters bar.

My own view on this whole business is that all rape shield laws ought to be thrown out, and that what ought to occur instead is that both parties to a rape trial enjoy the benefit of anonymity until a verdict is returned. It is blatantly unfair that women should have the freedom to destroy men's reputations simply by making accusations with impunity, thanks to the anonymity granted them by these odious laws. As Britain's John Leslie affair demonstrated, rape is one of those things where the mud tends to stick even if one is acquited of it in court - people have a powerful need to believe that "there's no smoke without fire", and in Kobe Bryant's case, there's always going to be a large contingent of individuals who will go to their graves convinced that he was guilty, no matter what turns up in the course of the trial.

One final thing I'd like to say, and I'm done; how do cases of male-on-male rape fit into the whole rape shield paradigm, or what about cases where a woman, say, drugs a male and uses an object to assault him? The sexist assumption seems to be that the only possible sort of rape that can occur is that of a woman by a man, but anyone with a clue ought to know that other varieties of rape can and do happen, or "don't drop the soap" jokes wouldn't pack the punch they do.

PS: This Reason article by Cathy Young also makes for an eye-opening read. Anyone who imagines that rape shield laws don't lead to miscarriages of justice is living in a dream world.