Patty Occhiuzzo Giggans, director of the Los Angeles Commission on Assaults Against Women, is looking forward to the Kobe Bryant trial, says U.S. News & World Report. Giggans views the case as a “teachable moment” to “openly confront what rape really is.” Legal definitions have changed, but public opinion and jury behavior have yet to catch up.
U.S. News notes that state laws that once required eyewitness corroboration and physical resistance by victims to prove rape have been replaced by statutes that protect the alleged victim’s sexual history and require prosecutors to prove only that sex was not consensual. The National Crime Victim Law Institute says that all states now have rape shield laws that protect the alleged victim’s sexual history, and 38 have adopted similar consent provisions. Illinois says that rape charges can be prosecuted even when consent is given at first but later withdrawn during sex–a principle established in a California Supreme Court case in January; supreme courts in five other states have issued similar rulings.
Colorado’s sexual assault laws implicitly include the right to withdraw consent, but many jurors may believe that “she’s responsible because she went up to his room,” says former prosecutor Karen Steinhauser, a visiting professor at the University of Denver. “The laws may have changed, but societal attitudes haven’t very much.”
A 2002 poll by the Texas Association Against Sexual Assault found 47 percent believed that allowing touching under the clothes constitutes consent to intercourse, and nearly a third thought that agreeing to go back to someone’s home after a date also signals consent. About 25 percent said a woman cannot claim she was raped if she didn’t actively fight off the sexual advance.
If Bryant’s alleged victim “admits that she consented at all, it’s over,” asserts attorney Roy Black, who successfully defended William Kennedy Smith in his 1991 rape trial. The notion that withdrawal of consent constitutes rape, Black says, “will never be a convincing argument to a jury.”
Prosecutors cite cases in which the withdrawal of consent has yielded convictions. “There was a time when, if a couple was having consensual sex but the man then forced the woman to have anal sex, we didn’t feel we could successfully bring those cases,” says Mary Keenan, a prosecutor in Boulder, Colo. “But jurors are better educated these days, and we’re more willing to prosecute.”