The Kobe Bryant Rape Trial

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.

6 thoughts on “The Kobe Bryant Rape Trial”

  1. “The physical damage is equivalent in pain and healing time to a really good “indian burn.” Should the penalty be the same?”

    You should be thinkin in terms of damages rather than penalty. What are the damages in each case?

    “I know if you asked 100 men at random if you could either penetrate them anally or give them an “indian burn” for, say, $100, the answers would be very different.”

    And if you asked a hundred hookers you’d get a lot of them opting for the penetration. In that case should an indian burn be treated more seriously than rape for hookers?

    Or in your example suppose you find one guy who would prefer the penetration. Should an offense against him be measured by the standard of his subjective preference, or that of the other 99 men?

  2. I also disagree, at least with part Kennedy’s argument. Suppose that the harm done is subjective. So what? Why is that a reason for discounting it altogether?

    As capitalists, we know that value is subjective. We let people set their own price. The same should be true of the “price” of sexual consent, even if it isn’t expressed in monetary terms. The loss suffered is reflected in psychological trauma, and though this may be harder to discern, it can’t be discounted.

  3. I see your viewpoint, but I can’t bring myself to agree with it. Some thoughts:

    If a rapist is really gentle, the physical damage is nearly zero. In that case the only charge is kidnapping for 15 minutes. What should be the penalty for that, and why should the penalty for 15 minutes’ kidnapping be the same as that for 5 minutes’ kidnapping plus rape.

    Let’s suppose someone with very poor taste rapes John T. Kennedy. The physical damage is equivalent in pain and healing time to a really good “indian burn.” Should the penalty be the same? I know if you asked 100 men at random if you could either penetrate them anally or give them an “indian burn” for, say, $100, the answers would be very different.

  4. I would suggest that Mr. JTK subject himself to a rather rapid buggering by a rather well endowed African-American and report back with an in depth accounting of what it really feels like.

  5. “I would suggest that Mr. JTK subject himself to a rather rapid buggering by a rather well endowed African-American and report back with an in depth accounting of what it really feels like.”

    He definitely would be wronged and entitled to perhaps a large amount of compensation from anyone perpetrating such an act upon him, butt if he routinely experienced buggery in the course of his normal sex life, then he probably wouldn’t find it so physically or mentally traumatic that it would merit putting his attacker in jail for life.

  6. [jtk]
    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.
    [/jtk]

    The problem is that it is rare where a harm has an objective value. The case of robbery is pretty easy. The case of assault is not. How much is a broken arm worth? A black eye? A fat lip? A cracked rib? We try to use medical bills as an approximation, but it’s impossible to say how much suffering and anguish the victim has gone through. Mental or not, the suffering and anguish are very real, and that suffering is a result of the tort.

    The common law has come to realize this, which is why we get “pain and suffering” as part of injury restoration. Over the past century, it has also begun to recognize something called the Intentional Infliction of Emotional Distress tort. It’s balls-hard to get to that level, but if you act to unbalance someone’s mind with the intent to do so, the suffering inflicted on the other person creates a debt the inflictor must pay. I’m not sold on IIED yet, but it does make sense if the Pain and Suffering tort is accepted.

    – Josh

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