Saturday, September 25, 2004

What's the propensity, Kenneth?

Here's an idea I would potentially like to pursue as a journal note of some sort: If the Kobe Bryant rape trial had gone forward, I think the defense could have made a compelling, and perhaps convincing, case for admitting evidence of the accuser's character. Now, before the two people reading this jump all over me for being a pig, understand that I'm not saying that the defense should have been able to bring in evidence of the woman's previous sexual history, although her sexual history in the immediate time period surrounding the alleged rape is certainly relevant, and relevant for purposes other than proving character as propensity; if the prosecution's case was (as I understand it) based largely on the physical vaginal injuries suffered by the woman, that she allegedly had multiple partners immediately before and after the Kobe coitus is overwhelming probative to proving that someone else could have been the source of those injuries. However, what I'm proposing is slightly different than the sexual history/character evidence in that regard; I believe that Kobe's defense team should have been able to bring in evidence that the woman was notorious for outlandish behavior with the intent of attracting attention. Several of her high school classmates made statements to that effect, including many of them referencing her attempted suicides, and her heavy participation in dramatic and other performing arts, perhaps indicative of her intense craving for attention.
I realize this is a gray area, but again, let's look at the logical steps:
The issue is not whether the sex happened; Kobe even admits that it did. The issue is whether the sex was consenual or not, and it's possible that one can argue that the girl's character trait of doing wild, crazy things (like having sex with a celebrity as famous as Kobe) led to her engagement in consenual sex with Kobe. One wouldn't be using the character evidence as proof of the woman's sexual history and thereby her consent; instead, one would use character evidence to proove the woman's propensity for repeated behaviors to attract attention, which in turn goes to prove consent. One can plausably fit such a use of character evidence under the "catch-all provision" allowing the Defendent his Sixth Amendment rights.

Just a curious thought, needs to be fleshed out in much greater detail, and with a much firmer grasp on the evidentiary rules, but might it not be plausable?

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