The Charge of Rape, the Force of Myth

By Alice Vachss
Originally published in The Washington Post, November 2, 2003

You can't argue as many rape cases before a jury as I did during my time as a New York City prosecutor and not understand that our society harbors some deep-seated rape myths—cultural misconceptions about sexual violence that interfere with our adequately addressing the prevalence of sexual assault. In recent years, most of these rape myths had gone underground, seemingly because it would have been unpopular to express them. But now, distressingly, the Kobe Bryant case has granted them all permission to resurface.

Something about this case seems to have given a more hateful voice to prejudice. The death threats against the prosecutor (which have required additional security measures) and the complainant (for which two individuals already face charges) are only the most extreme signs of a public enraged that anyone would accuse a basketball superstar "role model" of a sex crime. Despite all the evidence to the contrary, we insist on believing that only "certain kinds" of readily identifiable men commit rape. That is perhaps the most dangerous of our myths.

There are a few standard defenses to a rape charge: The rape never happened; it happened, but someone else committed the crime; or it wasn't rape, but consensual sex. Sometimes, such explicit defenses are poorly supported by fact or logic. They are presented to jurors only to give them an excuse to acquit. Far more powerful is the unstated defense that depends upon jurors' buying into rape myths—myths such as the one that insists, for example, that "real" victims resist to within an inch of their lives. Nothing in the legal definition of sexual assault in any jurisdiction corroborates such beliefs, but they persist with a force that sometimes exceeds the force of the law itself.

It's impossible, of course, to know the truth about the Kobe Bryant case at this stage. But almost from the start, Bryant's defenders jumped on the rape-myth bandwagon. One of the first "facts" presented in support of his innocence was that he is married—and what's more, his wife is beautiful. Originally, his wife's attractiveness was offered as proof that Bryant would not be interested in sex with another woman. This morphed into a rape myth once Bryant admitted to what he referred to as "adultery." The rape myth is that men with ample opportunity for sex do not "need" to rape. But there is no evidence that men rape because they have been deprived of consensual—including paid-for—sex. Rape is not merely forcible sexual intercourse. It is a complex drive, with varying motivations. To use the "only a hungry man will steal food" paradigm is both ignorant and pernicious.

But the biggest rape myth of all is that jurors in sexual-assault cases are blank slates. In fact, the danger in every sexual-assault prosecution is that the result has been determined before the jury is seated. That's the real stake in the pretrial publicity surrounding the Bryant prosecution.

Colorado law permits prosecutors to satisfy their minimal legal burden at a preliminary hearing by offering hearsay evidence. No conscientious prosecutor voluntarily exposes his or her witnesses to unnecessary pretrial cross-examination. Yet when Eagle County Judge Frederick Gannett, in his opinion binding the matter over for trial, made some gratuitous comments complaining about the inherent weakness of such hearsay evidence, the media dutifully reported that the case against Bryant itself was weak. The truth is, we simply don't know the strength of the case, and neither could a judge who heard primarily hearsay. The judge conceded as much in his opinion: "The court understands that the people have no obligation to present all, or even the best of, its evidence at a preliminary hearing, however the court can rule only on what was presented and admitted into evidence."

Yet public opinion about the complainant shifted dramatically as soon as the defense claimed that she had had consensual sex in the days preceding her encounter with Bryant. The defense's transparently specious justification for raising this "fact" at a preliminary hearing was the possibility that the gynecological signs of forcible intercourse may have been caused by someone other than Bryant. The unstated argument raised by this claim (and the one directly targeted at the media) is that this victim is "unworthy." Because still another rape myth is that "a slut cannot be raped."

There is no criminological data to support a correlation between the prior sexual activity of a victim and the likelihood of sexual assault. Prostitutes are no more likely to be raped than virgins. Yet even though Bryant has conceded an act of intercourse, there is inordinate interest in what biological sera may have been found in his accuser's underwear. In truth, her sexual activity or inactivity outside this incident is no more relevant to the issue of consent than his.

For defense purposes, the most effective rape myths are those that give the jury permission to be indifferent toward (or even resentful of) the complaining witness. FBI crime statistics suggest that false complaints are no more frequent in sexual assault than in any other crime, and this was borne out by my experience when I ran a special victims bureau. But rape myths warn jurors that there is a lurking population of disturbed or calculating women eager to "cry rape."

Old issues about the conventional roles of women crop up in rape trials in the form of disapproval of a victim, and are expressed as "doubt." In my experience, jurors have trouble deciding that it's "really rape" if a woman is out alone, especially at night or in a bad neighborhood (even if it's her own neighborhood). Jurors are concerned with how a victim was dressed even when "consent" is not the defense. Jurors judge a rape victim who consumed alcohol on the night she was raped (whether or not the rapist was present when she had a drink), or who seems to generally enjoy sex (whether or not she is married), or who is unmarried but sexually active. The punishment for such conduct by a woman is a refusal to believe her accusations.

One of the decisions I most regret in my career as a prosecutor was agreeing to a teenage rape victim's request to testify before she delivered her baby. When the jury learned that the defendant was not the father, and that the baby was the result of consensual sex after the rape, they decided that the night screams in the schoolyard that had prompted the 911 call could have been sounds of "pleasure." In fact, although many rape victims subsequently fear sex, many others seek out situations in which they can exercise consent as a way of regaining a sense of control.

Not all rape myths are anti-victim. This country has a shameful history of rape myths surrounding black men interacting with white women. We have finally begun to recognize that such myths are virulent when they target the accused. But when we're given permission to disapprove of a complainant's lifestyle, it triggers the exercise of all sorts of other prejudice toward her. The most unashamed racism I've ever heard expressed has been directed toward sex crimes victims. In Queens County, I learned that if I heard about an inexplicable acquittal in a sex crimes case, the first thing to ask was whether the victim was a Latina. As one well-educated woman of a different color put it when I raised this issue in a community forum on rape awareness: "Well, but ... we all know they're promiscuous."

Many jurors also tend to doubt rape victims who are too emotional, or not emotional enough; angry, or sullen, or inarticulate; too young, or too old; too ugly, or too pretty; or the wrong gender, or any class other than middle class.

Researchers have developed rape-myth acceptance scales that good sex crimes prosecutors borrow for jury selection purposes. All these scales consider it critical to measure the intensity of the subjects' beliefs. Measured against these scales, the degree of reaction against the prosecution of Kobe Bryant is alarming. There is so much anger that anyone would dare accuse him of rape that an Internet Web site, openly proclaiming the complainant's name, offers to provide her home address to any interested parties. Jeff Reichman, one of the two men who created the site, told the Rocky Mountain News he did it because "There are not really any superstars to look up to anymore." Bryant's status as a role model, has much of the public rallying to a cause we know almost nothing about.

We already know, from the painful betrayals of our children, that the clean-cut guy who coaches the Little League basketball team may turn out to be a child molester. One rapist I prosecuted pleaded guilty to more than 80 counts of sexual assault. Before his arrest, he had been elected the local "Man of the Year." Yet people believe, passionately, that it is indisputable proof of Bryant's innocence that he plays basketball so well on the court and that he seems so "nice" off it.

The only publicly known facts about what occurred on June 30 in the Lodge & Spa at Cordillera in Eagle County, Colo., come from statements made by the defendant. We do not know what he originally told authorities, because that preliminary hearing testimony was sealed as being too prejudicial to him. Bryant gave two subsequent statements to the media. The first was on July 12, to Los Angeles Times sportswriter Bill Plaschke: "When everything comes clean, it will all be fine, you'll see. . . . But you guys know me, I shouldn't have to say anything. You know I would never do something like that." Six days later, after the lab results came back, he gave a press conference and acknowledged sexual intercourse, but denied force.

It is fundamental to our criminal justice system that at this point Bryant be presumed innocent. It is apparently not fundamental, though, that a person who reports sexual victimization to the authorities be entitled to that same presumption.

Alice Vachss is a former chief of the special victims bureau in the district attorney's office of Queens, New York, and the author of "Sex Crimes: Ten Years on the Front Lines Prosecuting Rapists and Confronting Their Collaborators" (Random House).

© 2003 Alice Vachss. All rights reserved.