Author's note: This is my first attempt at serious writing on this webpage. I actually originally visualized the entire website to be filled with articles such as these, but I had to rant about things that pissed me off. If you're reading on and on and waiting for a punch line, it's not coming. Just read it and tell me what you think.
(02/05/04)
I hate celebrities clogging up the real news channels. Michael Jackson, R. Kelly, Winona Ryder, and others were only accused of committing ordinary crimes. I really don't care at all. O.J. Simpson's case bordered on the irrelevant, but it did raise public awareness of race relations, DNA evidence, and police procedure. Martha Stewart's case isn't really worth noting, but it is interesting because it may have implications in the financial markets and how business is conducted with securities trading. Kobe's case, however, is different. I think it's important to follow not because it has implications on the entire NBA and especially the Lakers, but because the events make it so difficult to determine whether rape occurred. Should Kobe Bryant go to jail? Let's go ahead and give him due process. However, this case raises questions concerning rape, consent, and the man's knowledge of consent.
First we must determine what rape is. Of course, most people would define rape as having sexual intercourse with a person without that person's consent. Assuming that a man allegedly rapes a woman, does the man have to know that the woman is not consenting? What constitutes consent? In 1975 the British House of Lords ruled in Director of Public Prosecutions v. Morgan that if a man believes a woman to be consenting to sex that "he cannot be convicted of rape, no matter how unreasonable the belief" [1]. In this case, a Mr. Morgan basically invited his three drinking buddies home to have sex with his wife. Before they got there, the husband told his buddies that his wife also liked to struggle against sex. They ran train on her and she went to the authorities accusing these drunk men, including her husband, raped her. The 4 men were convicted of rape by the court, and the appellate court also affirmed the conviction. However, the highest court, the House of Lords, ruled in favor of the defendents, and it raised some controversy. Recently in America, however, the courts have generally ruled that no intent to rape is necessary for a conviction; the man can still rape while believing that she consents.
So what does this have to do with Kobe? Well from all accounts, it's reasonable to assume that Kobe had sex with his accuser and that he truly believed that it was consensual. The question is, did the girl actually consent? What kind of resistance did she offer? Anyway, I believe that even without noticeable resistance, sex is nonconsensual if the woman says no or if the man is imposing or threatening (or uses force, of course). It's also possible that the woman was truly fearful of Kobe and did not want to anger him by refusing sex. If this is true, then Kobe still deserves a conviction.
The woman's sexual history or psychological profile is irrelevant to the case. The idea that one cannot be convicted of raping a promiscuous or emotionally unstable woman is absurd. If courts ruled in this way, rapists could go and seek out wild or depressed women and claim consent. Also, the fact that the woman was wearing underwear with another man's semen when she went to the clinic the next morning means very little. Imagine a case where a woman is raped and appears at the clinic wearing underwear with traces of her husband's semen. It's clear that she has had sex with another man, and the woman is accusing this man of rape. In this case, the husband's semen is not an issue. What makes another non-spousal partner any different? Let them all have their day in court. If she's chasing money she deserves jail time, but if she truly did not consent (those bruises and abrasions don't help Kobe's case) Kobe needs to go away for a long time. He'd crush people on the prison court, and it'd probably be entertaining to see.
What irritates me the most is how the other people handled this case. The jackasses in the clinic accidentally released her private medical records to the defense team and the prosecution team when neither team was supposed to see it. The police investigating the case broke all sorts of procedures including not reading Kobe his rights before the first taped interview, questioning Kobe after midnight (Colorado law requires that the police investigate the accused during the day). I would hate to see the trial thrown out on technicalities and mistakes. We'll see if the star legal team can pull this one off. Either way, I hope this case actually raises public awareness of how murky the legal definition of rape is. Perhaps we'll hear some clamor concerning a lesser conviction for cases where the man incorrectly assumes consent. After all, the "man jumping out from the bushes" type of rape pretty much eliminates the possibility of consent, and our society views this type of rape as more heinous than acquaintance rape. Send me your comments.
[1] Susan Estrich, Real Rape [Cambridge: Harvard University Press, 1987], Chapter 6
More reading:
An excellent
Slate.com article on the case from July 2003
Google
search of Kobe and mens rea
Rape
and Force: The Forgotten Mens Rea
Wikipedia:
Mens rea
