21 March 2004

Rape shield laws are under attack in cases other than just Kobe's.

Actually, the laws aren't really under attack. It's just that these have got to be the most difficult evidentiary laws to apply. We can all think of times when history around an act is very pertinent to the charge and in this sort of charge it could be especially pertinent. To not allow exploration of the history could be an unconstitutional denial of due process or the right to confront. On the other hand to just let the Defense attorney fish through a woman's history in order to destroy her using unrelated sexual activity is just plain evil. Of course evil does not equal unconstitutional. So if you are the judge applying these laws it has got to be agonizingly difficult. On the one hand you have to apply the constitution; on the other hand you are responsible for what the attorney can do to the victim and must apply a law passed by the Legislature meant to protect her.

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