The Kobe Bryant Accuser's Civil Suit:
Why It Isn't Redundant With the Trial or the Victims' Fund, And Why One of Its Claims Is Very Unusual

Last Tuesday, August 17, the woman who has accused basketball star Kobe Bryant of rape filed a civil suit in federal court. Many observers have viewed her decision with skepticism. They claim that her civil suit will imperil the state's criminal case. They also claim she has already been sufficiently compensated by receiving $20,000 from Colorado's victims' compensation fund.

Are the skeptics correct? I will argue that the answer is no. Neither the ongoing prosecution, nor the victims' fund compensation, provides a good reason for the accuser not to persist in her tort suit.

I will also consider an interesting issue raised by the suit: If the alleged victim can prove Bryant attacked her, and if she can prove her allegations that she has suffered public scorn and humiliation, should Bryant have to pay damages for that scorn and humiliation?

Victims' Compensation Fund Money Is Not Intended as Full Compensation

To begin, it's important to recognize that the victims' compensation fund money was neither intended to provide the alleged victim with full compensation, nor intended to represent a finding as to Bryant's guilt.

I assume that the $20,000 that the alleged victim received was given to her because she had satisfied the state of Colorado that she was the victim of a crime. To get the money, she did not have to prove that Kobe Bryant committed a crime against her. (While this may seem like a fine distinction, in this case it's a real one: The alleged victim's injuries may be sufficient to suggest sexual assault or rape to the state, but may not prove who the perpetrator was.)

Nor did any of the money the alleged victim received come from Kobe Bryant. Instead, if Colorado's practice is similar to that of other states, the money probably came from penalties paid by other people - people who were convicted of crimes which had nothing to do with her - into a general crime victims' compensation fund.

Money from victim compensation funds are not supposed to compensate victims for their injuries. The amounts paid out are deliberately chosen to be relatively small, "token" amounts. This is in part because the state cannot afford to repay all the victims of violent crime the "full" cost of their injuries.

Why do these funds exist at all, if victims have the option to bring tort suits? The answer is that they are designed to get money to - among others - those victims whose cases may never see a courtroom. For some victims, the perpetrator cannot be identified. For others, the state will not have a strong enough case to bring to trial.

In the Bryant case, of course, the state actually has begun a prosecution. Moreover, the alleged victim is in a position to personally pursue her alleged attacker, whom she has identified. So perhaps if the accuser wins her suit against Bryant she should be required to repay the $20,000 back into the compensation fund.

But the fact that the accuser has received this compensation, in itself, is not a reason to discourage her from suing. Again, this is not supposed to be full compensation. Nor is it supposed to be compensation from the perpetrator. It is a tort suit that is calculated to provide full redress from the perpetrator. And that is what a victim is entitled, under the law, to seek.

Lawsuits Allow Victims Control; Trials and Funds Do Not

Another advantage of a tort suit is that - unlike a compensation fund or a trial - it allows the alleged victim to take control. The fund gave her a simple, relatively passive decision: Take the money or leave it. Prosecutors gave her a simple, relatively passive decision: Cooperate or not. But the tort suit gives her control - which many crime victims understandably seek to regain after they have been victimized.

It's important to remember that the state - not the alleged victim - brings a criminal prosecution. Victims and their families might get involved to lesser and greater degrees. But, in the end, it is the state - not the alleged victim -- who is the interested party. Prosecutors work for you and me. Criminals are punished because punishment serves the state's interests.

Furthermore, the penalty suffered by a criminal defendant if he is found guilty is not designed to repair the injury suffered by the victim. Criminal sentencing is designed to punish past crime, to deter future crime, and, more generally, to benefit society.

Sometimes victims get a lot of satisfaction from watching (and helping) criminal prosecutions. But in the end, the process is being done primarily to serve society - not the victim.

A civil tort suit, however, is very different. If a victim decides to proceed, and wins, then her attacker's responsibility is to her, and not the state. He has to pay back his debt to her, not his debt to "society."

What Are The Accuser's Claims? And What Redress Is She Seeking?

Bryant's accuser, as noted above, did choose to sue. She filed her suit in federal court. But that is not because federal law is involved; it is because "diversity" jurisdiction exists in light of the fact that the parties are residents of different states. So the substantive law will be Colorado tort law - not federal law.

What tort claims, in particular, did the Bryant accuser bring? Her complaint accuses Bryant of "sexual assault," and describes, in some detail, her account of what happened.

Her allegations, if true, describes a wide range of intentional torts - including battery, assault, false imprisonment, and the tort of "outrage" (also known as intentional infliction of emotional distress). And all of these, under Colorado law, can trigger the defendant's liability to pay damages.

What is interesting about the suit, however, is that it claims two bases for its allegation of emotional distress. The first is unsurprising: It is the alleged attack itself. The law is well-settled on this point: If the attack indeed occurred, and if the victim suffers persistent emotional distress "proximately caused" by it afterward, she can recover damages. Pain and suffering--whether physical or mental--can recur years after a violent attack, and the law respects that, and takes it into account.

But the second basis for Bryant's accuser's emotional distress claim is more unusual, and more tenuous.

An Unusual Emotional Distress Claim: Seeking Liability For Public Scorn

The plaintiff is claiming that Bryant is also responsible for the "public scorn, hatred and ridicule" - and the resulting emotional distress -- she suffered because she cooperated with the criminal prosecution of Bryant, in the midst of a media storm.

But who (or what) was a "proximate" cause of this scorn: Bryant? The media? The Colorado court system, which inadvertently revealed the accuser's name? All of the above? None of the above?

The question cannot be answered by asking whether the media storm and court bungling were foreseeable. In some ways, both were, to some extent -- in the same way that, for instance, the risk of subsequent medical malpractice is deemed foreseeable by a careless driver who causes an accident that sends a victim to the hospital where she suffers a further injury.

If Bryant indeed attacked the accuser, then arguably he should have foreseen that given his positive image as a celebrity, much scorn would be heaped on her when she sought to have him prosecuted. In this analogy, a reckless driver (Bryant, if he is guilty) would have the injuries he caused foreseeably exacerbated by a malpracticing doctor (the media) - and then be liable, perhaps, for those injuries.

But foreseeability is not the whole ballgame here. Proximate cause, under the law, is determined by social concerns that limit even foreseeable subsequent injuries.

So is there "proximate cause" here - in light of social concerns? My intuitions are pulled in two directions in this case.

In 1996, in Augustus v. Gossett, the Canadian Supreme Court decided a somewhat similar issue. There, a woman sued for her own emotional distress after her son was wrongfully shot and killed by the police in Montreal. She claimed - like Bryant's accuser -- that her pain was exacerbated by publicity. And she claimed that the police should have foreseen that the publicity, and not only the shooting, would cause the boy's survivors pain. The Court agreed with the mother, and allowed the damages to be increased. On this theory, Bryant - if guilty - should pay not only for the attack's pain, but the pain of the publicity.

But is that just? Should Bryant - even if guilty - also be responsible for the way the media and the court system have treated the alleged victim? After all, he did not write the commentary - or disclose the accuser's name; others did that. And there is a limit, in tort law, to the scope of a defendant's responsibility for even the foreseeable wrongdoing of others who are not under his control.

Of course, Bryant should not be given extra-favorable treatment because he is a celebrity. But public policy might dictate that he should not be at a disadvantage because of his celebrity status, either - and that may mean that he should not be held responsible for the fact that his positive public image led to attacks on the accuser. It is hard to fault him for the conduct that caused the public to think well of him.

The Timing Question: Should the Victim Have Waited To Bring Her Suit?

Even those who accept the alleged victims' right to sue in this case - as I have argued we all should - sometimes suggest she should have waited to sue until the criminal case is over. They ask: Isn't she imperiling the state's case by allowing Bryant's lawyers to question her about her civil suit at the criminal trial?

But it is not fair to ask the alleged victim to wait. For one thing, if she waits, her claim might end up being barred by the statute of limitations. In Colorado, the time limit for claims of sexual assault is two years. But in Colorado, the statute of limitations for assault, battery, and false imprisonment is one year - and it seems that the statute of limitations for suing for punitive damages is also one year. So the accuser had to sue this summer, or risk losing at least some of her claims.

And in any event, given what I have argued above, it's unlikely that her civil suit would harm the state's criminal case - so that is not a good reason for her to wait. Bryant's lawyers already know what testimony she is likely to give, based on the indictment.

In the unlikely event she had to give a deposition in the civil suit before testifying in the criminal trial, they would get a preview of her testimony - but they've already had a preview. And she would get a preview of their cross-examination, which she has not previously had.

If the alleged victim has been really injured by Bryant, then she has every reason to bring a civil suit. She should not have to wait for the state to act on her behalf. As argued above, a civil suit is designed to give the victim of a criminal attack something quite different than what she might receive at the end of a criminal trial. To accuse someone who has been truly attacked that they are somehow "just" looking for money insults not only the plaintiff, but the entire tort system.

When a victim of rape sues in tort, she is not just seeking money--she is seeking redress. The state's criminal case should not - and in this case, most likely will not -- suffer when someone wants to use to tort system to get justice.