Steff Posted July 21, 2003 Share Posted July 21, 2003 From this, looks like her past will not be an issue. This is a case where it was used: http://www.law.emory.edu/10circuit/aug97/9...6-1380.wpd.html And for some reason the link to this will not copy, so her is the law. The Rape Shield Law Under certain circumstances, the Rules of Evidence prohibit the introduction into evidence of the victim’s previous sexual history in criminal cases of sexual assault and incest. Called the rape shield law and codified in KRE 412, this exclusionary rule extends beyond cases of rape to all prosecutions brought under KRS Chapter 510 ( i.e., sexual offenses), for incest, and for conspiracies or attempts to commit any such offenses. While the analogous Federal Rule of Evidence extends the rape shield law into both civil and criminal proceedings. The Purpose of the Law: The purpose of KRE 412 is "to prevent the victim in a sexually related crime from becoming the defendant at a trial." Smith v. Commonwealth, App., 566 S.W.2d 181, 183 (1978). Before the enactment of the rape shield law, "evidence of the victim’s prior sexual conduct was admissible to support the proposition that if she consented to have relations with one or more persons then she consented to the relations with the defendant." Smith, 566 S.W.2d at 183. While KRE 412 does permit the introduction into evidence of the victim’s sexual history under limited circumstances, its "balancing test contains ‘an obvious tilt toward exclusion over admission.’" Commonwealth v. Dunn, 899 S.W.2d 492, 494 (1995), citing R. Lawson, The Evidence Law Handbook Section 2.30 (3d ed. 1993). Type of Evidence Excluded: Whether a victim’s past sexual history will be excluded under KRE 412 depends, in part, upon what form of evidence is presented. Reputation and opinion evidence of the victim’s past sexual behavior is never admissible. KRE 412(a). This prohibition means that no witness may take the stand in a rape case and testify, for example, that the victim had a reputation in the community for morally loose conduct. In contrast, evidence of particular acts by the victim is generally not admissible, unless it comes within three exceptions specified in the rule. KRE 412( b. While the rule does provide for admission of evidence concerning prior sexual behavior pursuant to these three exceptions, these exceptions are to be construed very narrowly. "KRE 412( b is to be used sparingly and carefully." Violett v. Commonwealth, 907 S.W.2d 773, 776 (1995). See, e.g. Gilbert v. Commonwealth, 838 S.W.2d 376 (1991)(in trial of step-father for raping his step-daughters, evidence that one stepdaughter had requested birth control devices and that another had prior sexual activity with individuals other than the defendant was excluded under the then existing rape shield law). Limited Circumstances Where Past Sexual Behavior May Be Admitted: The first exception to KRE 412 provides for admission of evidence of past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury. KRE 412(. b(1). This exception would be most commonly used when the issue at trial was the identity of the assailant. If, for example, a defendant in a rape case asserted that he was not the rapist and that the attack was committed by another, the defendant would use this exception to argue that another person with whom the victim had been sexually involved was the one who actually committed the assault. The second exception to KRE 412 permits the introduction of past sexual behavior if it is evidence of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which an offense is alleged. KRE 412(. b(2). This exception targets cases where the consent of the victim is at issue. If, for example, the defendant and the victim had a previous sexual relationship, the defendant may attempt to offer that into evidence to demonstrate that she consented to the sexual act at issue in the trial. Finally, KRE 412 contains a general relevancy exception permitting the introduction of "any other evidence directly pertaining to the offense charged." KRE 412(. b(3). Procedural Requirements When Attempting to Offer Past Sexual Behavior Into Evidence: If the defendant intends to offer evidence of the victim’s previous sexual behavior, he is required to comply with certain procedural requirements for its admission and may not simply wait until trial to present the evidence. The defendant is required to make a written motion to offer the evidence, as well as an order of proof, and must do so no later than fifteen days before trial. If, however, the court determines that the evidence is newly discovered and could not have been discovered through the exercise of reasonable diligence or that the issue to which the evidence relates has only newly arisen, then the defendant may file a written motion to offer the evidence at later date, including during trial. KRE 412(. c(1). If the court determines that the offer of proof contains evidence within the specified exceptions of KRE 412(.b, then the court shall conduct a hearing in chambers, meaning spectators will not be permitted to be present. Both parties are entitled to call witnesses and present evidence at the hearing. Evidence of past sexual behavior may be admitted only if the court finds that it is relevant and "that the probative value of such evidence outweighs the danger of unfair prejudice." KRE 412(. c(3). If the evidence is admitted, however, the defendant is limited in the extent of the evidence offered and the manner in which he may present it: the court shall issue an order specifying the evidence which may be offered and "areas with respect to which the alleged victim may be examined or cross-examined." KRE 412(. c(3). Questions about Crimes of Rape and Sexual Assault and the Use of the Rape Shield Law Can a perpetrator be prosecuted for rape or sexual assault even if there were no witnesses to the attack and no physical evidence? Yes, the victim’s testimony is sufficient to support a conviction in cases of rape and other kinds of sexual assault. Such testimony is not required to be corroborated: Even if the evidence of the alleged victim is viewed as uncorroborated, standing alone it is still sufficient to prove all the elements of the crime charged, and to create a jury issue. It has long been the rule in rape cases that "the unsupported testimony of the prosecutrix, if not contradictory or incredible, or inherently improbable, may be sufficient to sustain a conviction." Dyer v. Commonwealth, 816 S.W.2d 647, 651 (1991)(holding that there is no corroborative requirement for sodomy cases) (citations omitted), see also Commonwealth v. Cox, 837 S.W.2d 898 (1992). Will a perpetrator who is intoxicated at the time of the offense be permitted to argue that intoxication as a defense? No. Voluntary intoxication can be a defense only to crimes which are "intentional and knowing offenses." Malone v. Commonwealth, 636 S.W.2d 647 (1982). The statutes defining rape, sodomy, and sexual abuse do not require any specific intent on the part of the perpetrator. Therefore, "once the prohibited acts are done, the crimes of forcible rape and sodomy are complete without regard to the effect of voluntary intoxication on the accused’s mental state." Malone v. Commonwealth, 636 S.W.2d 647 (1982). If a sexual assault victim files a civil action against the perpetrator will the rape shield law apply in the civil context? Maybe – it depends if the victim files her suit in state or federal court. In Kentucky state courts, the rape shield law does not apply. In federal courts, however, the rape shield law applies to both criminal and civil cases. Given that Congress recently passed a federal civil rights remedy for crimes of violence motivated by gender, the federal courts will prove an increasingly important forum for victims of sex crimes who are seeking to recover civil damages from their perpetrators. The federal rape shield law, FRE 412, has different standards in criminal cases and in civil cases for excluding past sexual behavior of the victim. In the civil context, FRE 412 provides: In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim’s reputation is admissible only if it has been placed in controversy by the alleged victim. FRE 412(. b(2). If a victim had a previous sexual relationship some time ago with the perpetrator, will that previous relationship still be admitted into evidence under KRE 412(. b(2)? The remoteness of the relationship should dictate that it not be admitted, but much depends upon how much time has elapsed since that relationship. The Supreme Court has held that KRE 412 "still clearly vests a circuit court with the discretion to refuse to permit remote evidence of [an] alleged past sexual relationship between the accused and the alleged victim." Dunn v. Commonwealth, 576 S.W.2d 492, 494 (1995). In the Dunn case, the Court ruled that evidence of a previous sexual relationship which had existed between the victim and her rapist seven years before the assault had been properly excluded by the circuit court. In Reneer v. Commonwealth, Ky., 784 S.W.2d 182 (1990), the Court excluded evidence of a sexual relationship which allegedly existed between the sodomy victim and the perpetrator one month before the attack. The Court found that "key elements" in ruling to admit evidence of a previous sexual relationship were whether there were other direct witnesses and physical evidence in addition to the testimony of the victim. Since the Reneer case had two witnesses who testified that the victim did not consent, the Court held that the evidence of the previous sexual relationship was "neither material nor relevant to consent." Reneer, at 183. What is the difference between the rape shield law and the rules on psychotherapist and counselor privileges? The rape shield law is an evidentiary rule which excludes evidence because that evidence has been determined generally to be irrelevant and prejudicial to the criminal trial. The rules of privileges, contained in KRE 506 and 507, in contrast, exclude possibly relevant information because the harm to the victim and to society caused by revealing such information generally outweighs the benefit of admitting that information in a court proceeding. These privileges belong to the client or patient, and must be either asserted by them or by someone on their behalf or they will be waived. Quote Link to comment Share on other sites More sharing options...
aboz56 Posted July 21, 2003 Share Posted July 21, 2003 Thank ya once again Steff, ever though of a career in law? Quote Link to comment Share on other sites More sharing options...
clujer420 Posted July 21, 2003 Share Posted July 21, 2003 Fear not, her past will ALL be out in the open far before this goes to trial (if it ever does), and public opinion will be even more in the favor of Mr. Bryant. It's only been a few days, and her FRIENDS are already selling her out. And this law is completely and utterly ridiculous. Even if she had falsely accused 1,000 other guys of "sexual assault", that would not be permitted in court. That makes a whole lot of f***ing sense. Quote Link to comment Share on other sites More sharing options...
Steff Posted July 21, 2003 Author Share Posted July 21, 2003 Thank ya once again Steff, ever though of a career in law? Ick! No way!! I have 2 friends that are lawyers and one that is a legal assistant.. their hours suck! This case just intrests the heck out of me. Having been through something similar where the media runs with BS stories I can kind of feel her pain. I hope that if this is all true she sues the crap out of them! Quote Link to comment Share on other sites More sharing options...
clujer420 Posted July 21, 2003 Share Posted July 21, 2003 I hope that if this is all true she sues the crap out of them! And if Kobe is innocent of raping her and she is making this whole thing up and it's proven so, do you also hope that he sues the crap out of her for defamation of character? Quote Link to comment Share on other sites More sharing options...
CubKilla Posted July 21, 2003 Share Posted July 21, 2003 And this law is completely and utterly ridiculous. I hope no one near and close to you ever gets raped then. You should do the board a favor and shut you mouth on this topic. You sound like a misogynist pig. Quote Link to comment Share on other sites More sharing options...
clujer420 Posted July 21, 2003 Share Posted July 21, 2003 I hope no one near and close to you ever gets raped then. You should do the board a favor and shut you mouth on this topic. You sound like a misogynist pig. How about if you don't like my opinions on this topic, you shut the f*** up and don't read them? Have a nice day. Quote Link to comment Share on other sites More sharing options...
CubKilla Posted July 21, 2003 Share Posted July 21, 2003 How about if you don't like my opinions on this topic, you shut the f*** up and don't read them? Have a nice day. Good one Quote Link to comment Share on other sites More sharing options...
aboz56 Posted July 21, 2003 Share Posted July 21, 2003 I love how people are siding with Kobe on this one so much. Looks like we're gonna have O.J. all over again... To the D.A. of Eagle County, nail that bastard if he is indeed guilty... Quote Link to comment Share on other sites More sharing options...
CubKilla Posted July 21, 2003 Share Posted July 21, 2003 I love how people are siding with Kobe on this one so much. Looks like we're gonna have O.J. all over again... To the D.A. of Eagle County, nail that bastard if he is indeed guilty... Girls that go to guys hotel rooms have it coming to them man! Get with the program Quote Link to comment Share on other sites More sharing options...
clujer420 Posted July 21, 2003 Share Posted July 21, 2003 Girls that go to guys hotel rooms have it coming to them man! That's the 2nd time in 10 minutes that you've said that. Did someone here say that she deserved it? Quote Link to comment Share on other sites More sharing options...
Guest hotsoxchick1 Posted July 21, 2003 Share Posted July 21, 2003 That's the 2nd time in 10 minutes that you've said that. Did someone here say that she deserved it? no one deserves anything that bad to happen to them.... but honestly now.. why would one go to a guys hotel room if not have sex with him?????? be realistic....surely not to have tea and crumpets and talk about the latest hillary clinton book...... Quote Link to comment Share on other sites More sharing options...
Guest wsc425 Posted July 21, 2003 Share Posted July 21, 2003 Killa enjoys hotels. Quote Link to comment Share on other sites More sharing options...
clujer420 Posted July 21, 2003 Share Posted July 21, 2003 no one deserves anything that bad to happen to them.... but honestly now.. why would one go to a guys hotel room if not have sex with him?????? be realistic....surely not to have tea and crumpets and talk about the latest hillary clinton book...... There is no other reason. She obviously went there for sex -- there must be some mighty strong evidence of rape for this to get as far as it has gotten. Quote Link to comment Share on other sites More sharing options...
Steff Posted July 21, 2003 Author Share Posted July 21, 2003 no one deserves anything that bad to happen to them.... but honestly now.. why would one go to a guys hotel room if not have sex with him?????? be realistic....surely not to have tea and crumpets and talk about the latest hillary clinton book...... That is not a fair generalization. Especially with our "friends". Quote Link to comment Share on other sites More sharing options...
Guest hotsoxchick1 Posted July 21, 2003 Share Posted July 21, 2003 That is not a fair generalization. Especially with our "friends". our "friends" is why i made that generalization....they dont go to hotels to talk books...... just pointing out a lesson to be learned here is all.....dont ask to come up and put the do not disturb sign on the door till you know for sure its ok to do it......... Quote Link to comment Share on other sites More sharing options...
clujer420 Posted July 21, 2003 Share Posted July 21, 2003 That is not a fair generalization. Especially with our "friends". .............. not quite sure what you mean, but are you saying that you think she went up to his room for a reason OTHER than for sex? Quote Link to comment Share on other sites More sharing options...
Steff Posted July 21, 2003 Author Share Posted July 21, 2003 our "friends" is why i made that generalization....they dont go to hotels to talk books...... just pointing out a lesson to be learned here is all.....dont ask to come up and put the do not disturb sign on the door till you know for sure its ok to do it......... OK, I see what you're saying. I went a step further since I have many times met the guys at their rooms and never, EVER had or expected to have sex with them. Quote Link to comment Share on other sites More sharing options...
Bmr31 Posted July 21, 2003 Share Posted July 21, 2003 no one deserves anything that bad to happen to them.... but honestly now.. why would one go to a guys hotel room if not have sex with him?????? be realistic....surely not to have tea and crumpets and talk about the latest hillary clinton book...... According to what i read, she was making a delivery. It was late, but the guy is FAMOUS, maybe she liked him? That doesnt mean she wanted sex. Quote Link to comment Share on other sites More sharing options...
clujer420 Posted July 21, 2003 Share Posted July 21, 2003 According to what i read, she was making a delivery. It was late, but the guy is FAMOUS, maybe she liked him? That doesnt mean she wanted sex. And according to what I've read, she was off-duty at 11 pm, and went to his room at around 11:15. She was making a delivery alright. Quote Link to comment Share on other sites More sharing options...
Guest hotsoxchick1 Posted July 21, 2003 Share Posted July 21, 2003 According to what i read, she was making a delivery. It was late, but the guy is FAMOUS, maybe she liked him? That doesnt mean she wanted sex. no it doesnt.....not at all.. and thats not what i meant.....deliveries and such do not warrent rape, nothing does....but how do you know that when she got there he didnt say hey come on in and they started small talk and one thing led to another? we dont know cause we werent there.....as we dont know that if they had conversations before her arriaval to his room... as we dont know if he requested her to come to his room..... too many things we dont know........ Quote Link to comment Share on other sites More sharing options...
Bmr31 Posted July 21, 2003 Share Posted July 21, 2003 And according to what I've read, she was off-duty at 11 pm, and went to his room at around 11:15. She was making a delivery alright. I know it seems odd, but maybe she felt she could trust him. Maybe she was bragging to her friends that he invited her. I see what you are saying, but even if she DID want sex, and then said no, its still rape. Quote Link to comment Share on other sites More sharing options...
Guest hotsoxchick1 Posted July 21, 2003 Share Posted July 21, 2003 And according to what I've read, she was off-duty at 11 pm, and went to his room at around 11:15. She was making a delivery alright. I know it seems odd, but maybe she felt she could trust him. Maybe she was bragging to her friends that he invited her. I see what you are saying, but even if she DID want sex, and then said no, its still rape. as long as the word NO is there yes it is rape.......for either sex......(m,f).... Quote Link to comment Share on other sites More sharing options...
Bmr31 Posted July 21, 2003 Share Posted July 21, 2003 And according to what I've read, she was off-duty at 11 pm, and went to his room at around 11:15. She was making a delivery alright. I know it seems odd, but maybe she felt she could trust him. Maybe she was bragging to her friends that he invited her. I see what you are saying, but even if she DID want sex, and then said no, its still rape. as long as the word NO is there yes it is rape.......for either sex......(m,f).... People heard a altercation within the room and she ran out totally freaked out, according to the reports. I doubt she went to that extreme to set the guy up........ Quote Link to comment Share on other sites More sharing options...
Guest hotsoxchick1 Posted July 21, 2003 Share Posted July 21, 2003 no i dont think she went to any lengths to "set" him up.........i just think it was a misunderstanding on someones part as to the reasoning she was invited up to the room......... Quote Link to comment Share on other sites More sharing options...
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