Long before the first juror is selected, the nation is making up its mind about Kobe Bryant. Web sites condemning his accuser as a whore are proliferating. (You can even vote on whether Kobe or his alleged victim is lying.) Without a filament of evidence, journalists have split: Some call the young woman his “accuser”; others say “victim.” Some complain that he’s already been tried and convicted in the media; others complain that she has been raped again in the media.
How can anyone be so certain about what happened between these two adults in the light of a hotel minibar? The answer has little to do with this specific case and everything to do with our national hysteria over rape law—a hysteria that rape accusations are now easier than ever to make and easier than ever to prove, that rape convictions can now be based on the barest assertions, that punishment for rape is harsher than for anything save murder. We have created a system that is bad for everyone. The legal rules for rape have been “reformed” to the point that defendants have few of the usual presumptions of innocence while victims are still humiliated and exposed at trial.
How did this happen?
Throughout most of Western history, penalties for rape have been excessive. Usually, in both Britain and America, the punishment was life imprisonment or death. Feminists have long contended that this toughness wasn’t rooted in compassion for the victim but in male property rights. The chastity of a man’s wife or daughter was so valuable that its theft was more serious than other kinds of theft. The other paternalistic feature of all rape prosecutions was that the victim was inevitably put on trial herself. Until the 1970s, no woman could prevail at trial unless she showed she’d used “utmost force” (i.e., fought the attacker to near-death) and unless she had a corroborating witness. Moreover, she could not claim her husband had raped her (husbands were immune from rape charges in most states until the late 1970s), and jurors were routinely instructed that women were liars and hysterics. Trials were gruesome explorations of the victim’s sexual history, and convictions were rare.
Understandably then, feminist reformers had a lot of work to do when they set out to make the system more women-friendly in the 1970s. They managed to enact state laws that actually protected—rather than victimized—the women who’d been raped. Rape shield laws saw to it that evidence of past sexual conduct was not admissible. It was no longer necessary to show bruises to prove force. Corroborating witnesses were not necessary for a conviction (which is why the accuser’s testimony alone could send Bryant to prison for life). It should have been the dawn of a whole new day for womankind. But these feminist reformers also made things worse in many ways—perhaps because the feminists had a conflicting second agenda: to promote women’s sexual freedom. Complaints of date rape and acquaintance rape soared. A legal regime that barely did an adequate job prosecuting stranger-in-the-bushes rape was suddenly pressed into service to unearth subtle legal nuances of “power” and “consent.”
One result of this new legal emphasis on whether the woman consented is that inevitably, it is her sexuality and her conduct that is still put on trial. Bruises and a torn dress are things the law can understand. Whether a woman said “no”—or said “yes” but meant “no”—these new questions involve subtlety and context and past history. What was most shaming about earlier rape trials—the “did she ask for it” inquiry—is in some ways still the cornerstone of modern rape trials.
Another problem with the ‘70s reformers was that they couldn’t decide whether rape victims should be treated like any other assault victim or as eggshell victims with unique needs. Some states amended statutes to destigmatize rape and treat it like any other assault—rape as a crime of violence. Kobe Bryant has been charged under Colorado’s “sexual assault” statute, not a “rape” law. That is why penalties for rape decreased in some places after the ‘70s—feminists wanted them to be more in line with assault penalties so that juries would be more inclined to convict.
But the paternalistic belief that rape was unlike other forms of violent assault put simultaneous pressure on the law from the opposite direction. Victim’s rights groups and law-and-order conservatives worked hard to keep sentences draconian—which is why the sanctions for rape are still so out of line with any other form of assault and why probationers and parolees are now labeled sex offenders for life. These opposing groups also worked to protect rape victims in new ways. Rape shield laws and judges who preserve the anonymity of the accuser cut against the legal presumption of innocence for defendants, make it harder for them to know and cross-examine their accuser, and otherwise give the victim privilege over the accused.
The result of all this compensating and overcompensating for the historical imbalances of rape law is that somehow the law transformed from insulting blanket paternalism to flabby ineffectual maternalism. Sanctions remain too extreme, and the protections afforded the victim are also too extreme. Legal rules that degraded women—requiring a corroborating witness, for instance—have been replaced with rules that endanger men—allowing conviction based on bare testimony. And all this happens in the face of penalties that haven’t changed enough in 300 years.
The old tendency to put the victim on trial to determine if she had loose morals has simply become a new system of putting the victim on trial to determine if she’s the sort of girl who might have consented. Ironically, empirical evidence shows that all these reforms have not significantly increased the incidences of reporting, prosecution, or conviction for rape.
We have reformed, rewritten, and rejiggered rape law, but it is still fundamentally not “fair” in the sense of providing any real legal certainty. In the end—and unless Bryant’s accuser has some shocking physical evidence—it is still her word against his. Unless we legislate mandatory threesomes, or start videotaping trysts the way some police departments now videotape criminal interrogations, what happens between two horizontal people in the dark is ultimately unknowable. While it is true that some women lie, and it is also true that some men are sexual monsters, it is not at all true that the hodgepodge that is modern rape law can discern which is which.