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Why did Bryant's accuser become uncooperative?

Why did Kobe Bryant apologize?

By Anthony J. Sebok,
FindLaw Columnist
Special to CNN.com

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Kobe Bryant leaves the court last week.

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As is now well-known, the Kobe Bryant criminal prosecution in Colorado has collapsed. According to the Eagle County District Attorney's Office, the reason is that the woman who had accused Bryant of the crime has announced that she no longer wishes to cooperate with the prosecution.

Within hours of the state's announcement that the case would be dropped, Bryant's lawyer read a statement from Bryant. The statement said that Bryant "apologized" to the young woman for his "behavior that night and the consequences" she suffered. Bryant went on to say that while he believes that the sexual encounter that occurred "that night" was consensual, he recognizes that she does not.

Why did she stop cooperating? Why did the state drop the case? And why did Bryant agree to give the statement? In this column, I will examine some possible explanations for each of these events.

Why the accuser may have turned uncooperative

One possibility is that she may believe her case was mishandled.

Her faith in the criminal justice system must have been shaken each time her name was mistakenly leaked to the public. She may also have felt reluctant to testify given the cross-examination authorized by the judge.

Prosecutors tried to protect the accuser's privacy under Colorado's rape shield law. But in the end, the judge ruled the defense could present a limited set of evidence relating to the alleged victim's sexual history. The evidence, according to the ruling, would encompass any acts of sex up to 72 hours before, or in the hours immediately following, the accuser's time with Bryant. (Apparently, the reason the defense seeks to introduce the up-to-72-hours-prior evidence is to rebut claims Bryant used force -- by suggesting any evidence of force actually could have related to another sexual encounter.)

The victim might also have feared she would suffer this inquiry into her private affairs, only to watch the prosecution lose the case.

Reportedly, the prosecution was having trouble finding enough potential jurors who did not seem predisposed towards Bryant's innocence to make up a jury.

Wise move by prosecutors

After the accuser stopped cooperating, why did prosecutors drop the case?

Technically, they didn't have to: The state could have pursued a prosecution on its own initiative, and it could have subpoenaed the accuser to testify (as could the defense).

But as a practical matter, without the alleged victim's cooperation, the case would have been hard for the state to win. Jurors who sense the accuser's reluctance to appear might wonder if she was reluctant because she was lying -- or they might simply not feel confident enough in her reluctant testimony to base a conviction on it.

In the end, prosecutors made the right decision: It would have been cruel to force the accuser to participate -- without her full consent -- in a proceeding in which such private matters were at issue.

How will accuser's pending civil suit be affected?

As I pointed out in my last column, the alleged victim is now also a plaintiff in a civil suit: Last month, she filed a tort complaint against Bryant for damages, in federal court.

The accuser has not, however, withdrawn her civil suit against Bryant. Thus, she appears to think the civil suit will be easier to endure than the criminal case -- which she claimed had become unbearable.

Is she correct? She may be -- for several reasons.

First, the civil case may well settle before she ever has to testimony -- whereas Bryant showed no signs of being willing to plead guilty in the criminal case.

Second, she may reasonably expect that her hand-picked civil lawyers will do better than the Eagle County prosecutors, who have been unimpressive.

Third, she may hope to benefit from the lower "preponderance of the evidence" standard in civil cases. Jurors who might have hesitated to find Kobe Bryant guilty beyond a reasonable doubt, might be more open to concluding that it is "more probably than not" he sexually assaulted his accuser. (One famous case in which a criminal jury acquitted, but a civil held the defendant civilly liable, is of course that of O.J. Simpson.)

Fourth, even if the accuser did have to testify, the testimony might not go into her sexual history. The relevant rule would be Federal Rule of Evidence 412 -- which allows such evidence (if otherwise admissible) only if "its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party." Rule 412 isn't very different from the Colorado rape shield statute applicable in criminal cases. But the civil judge still might rule differently from Judge Ruckriegle.

Why? Because in the tort case, the plaintiff need only prove lack of consent -- not use of force. And remember, the 72-hours-prior sexual history evidence that would have been heard in the criminal case would have been used to rebut the prosecution's claim that Bryant used force.

Her conduct immediately after the sexual encounter with Bryant, on the other hand, probably would be held admissible in the civil case, just as it was in the criminal case. The defense seems to want to use evidence of a subsequent sexual encounter to show that the accuser never was raped in the first place -- for she did not "act like a rape victim."

Of course, victims of crimes act very differently from each other -- and the whole concept of "acting like a rape victim" is thus arguably wrong, and even offensive. But nevertheless, the court will likely at least allow the defense to argue that had the accuser really been raped, she would not have had sex with someone else soon afterwards.

Anonymity in civil case?

There is one respect, however, in which the civil case may actually be worse for the accuser: In the civil case, she has little to no chance of remaining anonymous.

Granted, the accuser has lost a lot of her anonymity anyway -- through leaks that occurred during the criminal case. But in the civil case, the court is likely to actually issue a formal order removing her anonymity. And the press may then follow suit by printing her name, as it has generally refrained from doing.

Granted, federal courts do occasionally allow plaintiffs to proceed under a pseudonym in civil suits. But this only happens rarely -- for instance, in a "highly sensitive." And while one might think a sexual assault case would be highly sensitive, case law suggests otherwise.

For example, when Tupac Shakur was sued for sexual assault, the court denied the plaintiff's request to proceed anonymously. The court reasoned that, unlike in a criminal case, it was the plaintiff -- not the state -- who had chosen to come to court, and thus her interest in anonymity was not the same. Ultimately, the court held that the public's interest in knowing who was suing Shakur outweighed the plaintiff's interest in privacy.

For these reasons, if Bryant moves to have the plaintiff's anonymity removed from the federal case, he will probably win.

Why did Bryant make his statement of apology?

It is typically unethical for plaintiffs to "trade civil for criminal" -- that is, to drop a criminal complaint in exchange for a civil settlement. So it is not possible, ethically, that there could have been a formal quid-pro-quo here -- with Bryant's lawyers swapping his apology for the accuser's noncooperation with the criminal case.

Nonetheless, it could have happened somewhat like this: Bryant's attorneys could have let the accuser's attorneys know that Bryant was inclined to make the kind of statement he gave -- one expressing regret, but not admitting guilt -- but not while the trial was going on.

The accuser's attorneys could have passed this information on to the accuser, who might have felt somewhat vindicated that Bryant had expressed remorse for how he behaved; was at least willing to admit that he behaved badly; and recognized that she had genuinely felt their sex was not consensual -- she wasn't making anything up.

The key, though, is that ethically the attorneys could not have agreed to the exchange of the statement for the noncooperation. But if the offer of the statement ended up causing the noncooperation, that might be ethically acceptable.

The key civil case issue

It is likely that the next step in this case will be a civil settlement -- probably one that would occur before litigation of the anonymity issue.

In light of the statement he has made, Bryant would have to argue during the civil trial as follows: She didn't think she had consented. But I thought she had. On these facts, would he be liable? The answer is: Only if the jury believes that in fact, the plaintiff didn't consent, and that it was unreasonable for Bryant to believe that she had.

This standard is different from the standard that would have applied at the criminal trial. There, Bryant could have been acquitted of rape if he genuinely but unreasonably thought she had consented.

If it's indeed the case that Bryant made an unreasonable mistake as to consent, then it's possible a kind of rough justice will be done in this case after all. That kind of mistake would not necessarily make Bryant guilty of the crimes charged. But it could still mean he committed a civil and thus ought to pay for the injuries he caused. In that situation, a civil settlement with no criminal trial may be the right result.

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Anthony J. Sebok, a FindLawexternal link columnist, is a Professor at Brooklyn Law School. His other columns on tort issues may be found in the archive of his columns on this site.


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