New Law Helps Protect Privacy in Rape Cases

The privacy rights of alleged rape victims were strengthened Thursday with the passage of a California law inspired by the Kobe Bryant case and boosted by a high-profile Orange County gang-rape trial.

The law requires that defense lawyers’ motions to disclose an alleged victim’s sexual history -- which in themselves reveal that background -- be kept confidential unless ruled admissible by a judge.

“Unscrupulous defense attorneys try to deny justice to victims by putting their sexual history out on display when it’s not relevant to the case,” Assemblyman Russ Bogh (R-Cherry Valley), who sponsored the bill, said in a telephone interview. “The law still gives a defendant the right to question his accuser. It’s just done in private.”

The state Senate and the Assembly unanimously approved the legislation before Gov. Arnold Schwarzenegger signed it Wednesday. It was added to the lawbooks Thursday, but will not take effect until Jan. 1.

“This legislation strengthens California’s rape shield law by protecting a victim’s privacy without abridging a defendant’s right to present their case,” said Terri Carbaugh, a spokeswoman for the governor.

Criminal defense attorneys also praised the new law, but said their clients should be afforded more privacy as well to protect the rights of the falsely accused.

Former state legislator Rod Pacheco, now a prosecutor in Riverside County, asked Bogh to sponsor the bill after observing the Bryant case, in which the Laker star is accused of raping a woman at a Colorado resort last year.

Bryant’s attorneys contend that the accuser had multiple sex partners in the days surrounding the encounter, which Bryant said was consensual. They want to introduce that information in court, contending that one of those men may have caused the injuries found during the woman’s rape exam. Also, they want to explore what they call the woman’s “attention-seeking behavior,” which they say is revealed through her false rape accusation, promiscuous behavior and multiple suicide attempts.

Closing arguments on the motion are due next week.

In Orange County, jurors are deliberating the case in which three young men are accused of raping an unconscious 16-year-old girl. In a motion filed before the trial, the defense attorneys asked the judge if they could probe areas of the girl’s past, including her parents’ attempt to get her medical and psychiatric help, and previous sexual encounters.

The defense said the girl had sex with a boy after knowing him for 10 minutes and allowed a store clerk to grope her so she could buy a six-pack of beer.

Those alleged events were not allowed as evidence at the two-month trial, but the attorneys were allowed to ask her about her prior consensual activities with the defendants. And under the current law, those details of the girl’s background were allowed to become public record.

Such activities exploit the rape shield law, said Sheldon Lodmer, the civil attorney representing the alleged victim in the gang-rape trial. He said legislation that further strengthens the rape shield law will persuade more victims to come forward because they will be less worried that their character will be publicly smeared.

“Too often the focus is on the victim and her past instead of where it really ought to be: what the defendant did,” Lodmer said.

That defense tactic violates the spirit of the rape shield law, if not the letter, said Cynthia Stone, a spokeswoman for the Colorado Coalition Against Sexual Assault.

A 1992 study, “Rape in America,” found that only 16% of rape victims reported the crime to law enforcement. A majority of those who did not report the crime cited fear of losing their privacy as at least one of the reasons they did not come forward.

Current California law requires that defense attorneys who want to probe a rape accuser’s sexual history at trial file a motion and support material with the judge -- information that can become public and reveal the victim’s alleged past.