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Rape Suspects Face An Uphill Battle

California defense attorney Barry Tarlow, whom we consider to be one of the deans of criminal defense, has written an op-ed in Sunday's Los Angeles Times titled Rape Suspects' Uphill Road. Using the Kobe Bryant case as an illustration, Tarlow explains why rape defendants are at an unfair disadvantage due to public policy considerations that have resulted in rape shield laws:

We are about to witness the imbalance of these rules in the case of Los Angeles Laker star Kobe Bryant in Eagle, Colo. Colorado has a stringent rape shield law. Evidence about an alleged victim's reputation or sexual conduct with others is presumed to be "irrelevant," and the Colorado Supreme Court has ruled that this "generally renders a victim's sexual history inadmissible."

....For Bryant, who has been charged with sexual assault, this is likely to mean that much of his intimate sexual history will now become "fair game." Like our country's last president, Bryant has made a humiliating public admission that he committed adultery. The prosecution's task, however, is not to prove that sexual contact occurred, but that it occurred without the alleged victim's consent.

....Although the defense might also be interested in investigating whether the alleged victim has previously engaged in similar sexual behavior, it would have an uphill battle to get such evidence in front of the jury. The same goes for evidence of sexual aggressiveness. Any evidence of it in his past may be admissible; in hers, that's not likely.

....A central tenet of our system of justice has always been that the accused is presumed innocent. When put on trial, a defendant is supposed to be tried only on the charges that were filed, not for any other illegal or unethical acts. For centuries, courts have held fast to this principle. Now a public-policy decision designed to correct vestiges of Victorian-era morality has stacked the deck against every citizen accused of a sex crime.

Most rape cases that turn on whether a sex act was consensual, as the Bryant case certainly will, ultimately come down to a "he said/she said" contest between the accused and the accuser. But how can a jury accurately judge the credibility of the two parties if the accused has been presented in the worst possible light while the accuser is enshrouded in a cloak of purity?

Tarlow notes that while DNA has cleared many of false rape charges, it is not particularly helpful in a consent case.

We do not have scientific tests capable of separating fact from fantasy — much less distinguishing criminal acts from the good-faith misunderstandings that frequently occur in human interactions.

Tarlow makes eminent sense, and we hope you read the whole article.

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