Law No Shield in Rape Trials

In the months since the rape charges were filed, defense lawyers have attempted to reduce the charges, throw out evidence and probe the accuser’s sexual history. Because of their client’s relative celebrity, the flurry of motions has generated more publicity than most cases ever see, and the trial hasn’t yet started.

No, this isn’t the Kobe Bryant case.

The defendant is the teenage son of a high-ranking Orange County sheriff’s official who -- along with two other teens -- is accused of gang-raping an unconscious 16-year-old girl during a party in Corona del Mar. Lawyers for the youth are requesting that the judge allow them to introduce evidence of the accuser’s sexual history, which they say will reveal her desire to be a porn star.

Nearly every state has passed laws prohibiting the introduction of an accuser’s sexual history. The laws are believed to have been at least partially responsible for bringing the rate at which rapes are reported from 15% to 40%, said Laurie Levenson, a former federal prosecutor and a Loyola Law School professor.

But the Bryant case and others are beginning to show the public that rape-shield laws are not absolute barriers to exposing an accuser’s sexual past, said Levenson.

“If you boil it down, the victim’s prior sexual conduct is supposed to be irrelevant on anything other than credibility,” she said. “You can’t use the sexual evidence just to say she has a propensity to have sex. But the way things are now, just raising the issues can put that information out there.”

Former Denver Chief Deputy Dist. Atty. Craig Silverman has been following the case against Bryant, who is charged with raping a desk clerk at a Colorado hotel, and said the two cases seem analogous.

Like Bryant’s lawyers, who have been criticized for claiming in court that his accuser had consensual sex with three men, including the basketball player, in as many days, attorneys for the three boys in the Orange County trial are employing similar tactics, he said.

But the attorneys for Gregory Haidl, 18 -- the son of Orange County Assistant Sheriff Donald Haidl -- Keith James Spann, 19; and Kyle Joseph Nachreiner, 19, are simply doing their job, said Silverman, who is now a criminal defense lawyer. The defense attorneys’ concern is their clients’ welfare, not that of the accuser, he said.

“If you have the resources, whether it’s in the media or not, you fight with everything you can,” Silverman said.

“If it’s legal and legally ethical, you shouldn’t hamstring yourself by saying this might hurt someone’s feelings. Nice guys finish last.”

The defense team for Haidl and the other teens has focused on the videotape one of the defendants made of the encounter, which the youths say was consensual.

The girl appears to be unconscious in the video, but in the latest wave of pretrial motions, defense lawyers argued last week that the tape was doctored to delete almost 18 minutes, during which they say the girl permitted the boys to do as they pleased before she blacked out.

They want the tape tossed out, which would all but undermine the high-profile case.

Defense lawyers have also asked permission to recount one incident in which, they allege, she allowed a liquor store clerk to fondle her so she could buy a six-pack of beer, and others in which there was prior consensual sex with all three defendants, including another videotaped encounter.

Prosecutors and some legal experts typically argue that an accuser’s sexual past is not relevant to whether she was raped, and that it should not be allowed to be a topic at trial.

Legal experts suggested that publicizing defense motions that purport to detail an accuser’s sexual history could also intimidate alleged victims -- the reason such rape-shield laws were enacted in the first place.

That likelihood of witness coercion increases, they said, when a case commands media attention on the level of the Bryant or -- to a much lesser degree -- the Haidl case.

“It has a chilling effect on victims, knowing that their history might get paraded before a nation or at least before a county,” said Andrea Freshwater, who heads the sex crimes and stalking unit for the San Diego district attorney. “I agree information should come out on both sides, but it’s got to have some relevance.”

It’s contrary to the spirit of rape-shield laws, she said, to detail an accuser’s alleged sexual past when a judge hasn’t ruled if it’s germane to the case. “How can you unring the bell?”

Deputy Dist. Atty. Dan Hess, who is prosecuting the Orange County case, declined to comment about pretrial matters in the Haidl case and the rape-shield law. He expects to file his response to the defense team’s motion Monday.

Prior consensual sex with defendants is usually an exception to the rape-shield law and is likely to be admitted in court, attorneys said.

In their motion, Haidl’s lawyers allege that for the accuser “to claim she never would have consented to such acts strains credulity.”

Former U.S. attorney’s office prosecutor and Los Angeles criminal defense attorney Barry Tarlow said informing jurors about the defendant’s prior acts with the accuser is only logical.

“It goes to the state of mind of the defendant and whether they thought they were raping someone or having consensual sex with them,” he said.

“If they just had sex with someone consensually, they’re likely to think they can do it again and it’s OK.”

But defense lawyers, particularly in a case in which the victim is alleged to have been unconscious, will have an uphill battle getting other details of the accuser’s past in front of a jury, experts said.

Among the activities alleged in the Haidl case are a sexual encounter between the accuser and a man she knew for only 10 minutes, and an interest in sex toys.

The evidence shows that the accuser “lacks credibility and that she has not been truthful in making her allegations,” according to the defense motion. “Defendants were aware of certain of these matters ... and conducted themselves accordingly.”

It is only fair that defense lawyers be allowed to attack an accuser’s credibility, attorneys said. When a rape case turns on whether a sex act was consensual, as the Bryant and Haidl cases do, the trial comes down to a “he said/she said” contest and the jury’s job is to determine who is credible and what information is relevant.

Defense attorneys questioned how fairly a jury can judge the parties’ credibility if they are given a distorted picture of the facts, or if important details are withheld.

“In a sex-related case, what you get is the accuser falsely depicted before the jury as pure as the driven snow, and the defendant is tarnished with everything bad they’ve ever done in their life,” Tarlow said.

“There’s something perverse about that.”

Haidl’s lead defense attorney, Joseph G. Cavallo, said he and his colleagues are not trying to smear her reputation gratuitously, but to rightfully call her credibility into question.

“Credibility is always relevant,” he said. “Her history is who she is, and it’s a history the boys were aware of. She’s not capable of telling the truth, even in the face of overwhelming evidence to the contrary.”

Cavallo can also see parallels between his case and that against Bryant.

“Besides the high-profile nature of both cases,” he said, “the similarity between them is that the girl consented.”