Is the victim on trial in the Kobe Bryant rape case? It’s possible, Kobe Bryant may conceivably be the victim. But Bryant’s accuser isn’t on trial. We know she isn’t on trial because the prevailing legal monopoly has not charged her with anything. She is not currently in jeopardy of doing time in jail as Bryant is. And unlike Bryant she can walk away from this case at any time. Kobe Bryant is the only one on trial here, regardless of how distasteful his accuser may find the proceedings.
Also unlike Bryant, the accuser is not having her name publicized in the major media outlets. There is no legal reason why they can’t, the government itself revealed her name on a state court web site, putting the information firmly in the public domain. No, the major media outlets are voluntarily shielding the accuser from publicity. Rape shield laws are moot in this matter, the government can’t legally prevent the media from reporting what the government has revealed. Apparently her name is Kate Faber.
The language the media uses to talk about the case is highly prejudicial. Bryant’s accuser is often simply called “the victim”, which assumes the substance of the charge. Sometimes the more precise term “alleged victim” is used, but even that’s prejudicial. Why? Because the accuser is an “alleged liar” just as much as she is an “alleged victim”, but you’ll only hear pundits referring to her as the latter. She should be called what we know her to be: The accuser.
Are rape shield laws justifiable in any case? I don’t see how they can be justified. In fact I think the entire body of law relevant to rape is unsupportable. What is the justification for treating rape different than other forms of assault? If account of the accuser is accurate then she was harmed by Bryant. But if he had caused her an equivalent amount of physical harm by slapping or punching her he wouldn’t be facing life imprisonment. Why the difference? There was a time when rape could do serious harm to a woman’s marriage prospects and that was one reason for treating rape as an especially serious form of assault. But that’s not true any more.
The other argument seems to be that rape inflicts a special kind of psychic harm. But I reject the notion that psychic harm ought to be legally actionable since it is entirely subjective. Some may suffer no more psychic harm from rape than from a non-sexual assault which is comparable in terms of physical damage. Others may suffer more psychic harm from a verbal insult than from being punched in the gut. Actionable harm ought to be objective.
Did Kobe Bryant rape Kate Faber? The account attributed to her in the preliminary hearing sounds credible on it’s face. He may have raped her and yet she may have acted in such a way as to make it impossible for others to know it beyond a reasonable doubt. If she’s telling the truth then she made very bad decisions when she chose to voluntarily go to Bryant’s room and make out with him. She had a right to say no at any time, but does that amount to a right to have large amounts of other peoples money spent to ascertain what happened behind those closed doors?
Individuals ultimately cannot be protected from the costs of their bad decisions. I think government harms women by pretending that it can.