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Saying yes, then no: Bryant case enters national debateConsent may be central focus in accused NBA star's case
By Matt Bean
(Court TV) -- That question is likely to be the central issue in the looming trial of NBA star Kobe Bryant. The 19-year-old hotel employee who has accused Bryant of sexual assault claims the two started "fooling around" in the basketball star's Eagle, Colorado, hotel room until she asked him to stop, according to published reports. If the reports are true, Bryant's case will speak directly to an ongoing debate over the way sexual assault is addressed in the nation's courts. At issue: how and when does a woman's "no" turn consensual sex into rape? "If I invite you into my house and I ask you to come in for an hour and then I change my mind and ask you to leave, you gotta leave," said Wendy Murphy, a former Boston prosecutor and director of the Victim Advocacy & Research Group. "If it's not my house but my body instead, it's an even more compelling argument." While withdrawal of consent -- saying no after initially saying yes -- may seem simple in principle, states have taken divergent approaches to its use in the courtroom. Illinois recently became the first state to officially address the withdrawal of consent by amending its rape law to include sexual activity after either party says "no." Lawmakers there said the move was in reaction to a precedent-setting California rape conviction that was ultimately upheld by the state's Supreme Court. In that case, two 17-year-olds were having sex at a party when the girl changed her mind during intercourse. The boy continued, and he was charged and convicted of sexual assault. The Colorado state statutes hold no such provision for a change of mind as in Illinois, and according to one former prosecutor, make it difficult to convict if the initial penetration is consensual. "Penetration is the key. Up until the point of penetration, no means no," said Norm Early. According to Early, withdrawing consent after penetration complicates a case because of the initial consent. But to victims rights advocates, the distinction continues the dangerous practice of focusing on the victim's complicity. "The shift in law has been to treat sexual assault as a crime of violence and to try to move the emphasis away from the victim and what she was doing or not doing and toward the suspect, and what he was doing," said Cassia Spohn, a criminal justice professor at the University of Omaha and co-author of the 1992 book "Rape Law Reform." Making a specific provision for withdrawal of consent, such as in the Illinois law, goes too far, according to victims rights advocate Murphy. "You shouldn't have to codify basic principles of human rights, which is what rape laws are all about," she said. "You should never put it into legislation that people have a right to change their mind." In prosecuting Bryant, Eagle County attorneys are expected to argue that, before penetration, the victim revoked her consent. Former prosecutor Early called the alleged victim's change of heart a "hurdle, but obviously [prosecutors] don't feel that it's a fatal hurdle." Ultimately, the question of when and how the victim's consent was revoked is less important than whether her story rings true, says Craig Silverman, a Colorado defense lawyer and former Denver prosecutor. "If you ask me whether it's rape if a woman agrees to some sexual activity and then says no," said Silverman, "that depends on what any particular Colorado jury says on the subject."
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