What If Kobe Bryant Has Been Falsely Accused?
Why the Law of Acquaintance and Date Rape Should Seriously Penalize False Reports

Last Wednesday, August 6, in what amounted to a highly publicized yet rare spectacle, Kobe Bryant was arraigned on a felony sex assault charge. There was no familiar gold jersey, no basket, and no opposing team to speak of, but that didn't stop the crowd outside the Eagle County Courthouse from rooting wildly for Bryant.

Bryant arrived at the courthouse via private jet, stayed for eight minutes, and uttered but two words: "No, Sir." Bryant's beautiful young wife, Vanessa, and her equally stunning, four million dollar, get-out-of-the-doghouse diamond ring did not accompany him to the event. But his diminutive attorney, Pamela Mackey, and her partner, Hal Haddon, did - with Mackey doing all the talking.

Bryant's next scheduled court appearance, a preliminary hearing, has been set for October 9 - just two days after he will have played his first preseason game of the 2003/2004 basketball season.

Meanwhile, it's become clear that the prosecutors are going after Bryant with a vengeance. Eagle County District Attorney Mark Hurlbert asked for an additional $105,000 from the state budget to cover anticipated expenses in this matter. The budget Commissioner not only granted his wish, but went further, allotting him $150,000 dollars, nearly a third more than requested, so he would have a "buffer."

Bryant's case has raised a firestorm of issues, but one in particular is at center court: Has this good guy been falsely accused? Even at this early stage, the majority of those asked say yes. To many fans, this case just feels false.

If Bryant has been falsely accused, it won't be the first time that a false report has been filed in an "acquaintance rape" case. In part, that's because the law fails to meaningfully penalize false reports, or to give those who have been falsely accused any justice.

Why False Rape Reports Are Especially Harmful and Destructive

The statistics on false rape reports in the U.S. are widely divergent, and often too outdated to be meaningful. Not surprisingly, the numbers also depend on whom you ask. Organizations that tout a feminist agenda claim the number of false rape reports to be nearly non-existent - about two percent. But other organizations, taking the side of men, claim that false reports are actually very common - citing numbers ranging from forty-one to sixty percent.

Amid the statistics, the truth is impossible to ascertain - but it's plain that false reports are indeed made, and that they can ruin the life of the accused, whether or not a conviction follows.

Falsely reporting any crime is shameful. Falsely reporting a rape is especially heinous. The liar who files the false claim dishonors - and makes life all the more difficult for - the many true victims who file genuine rape claims because they have been terribly violated, and seek justice for it. At the same time, and perhaps even more seriously, the false report begins to destroy the reputation, and sometimes the life, of the accused from the very moment it is made - a fact of which many accusers are keenly aware.

This phenomenon of "conviction before trial" is especially acute in Bryant's case. One of his current sponsors, Nutella, has already pulled out because of the present allegations. Will Nutella re-sign him to an endorsement contract if he is ultimately acquitted? It's doubtful - and in any case, Bryant's pride may counsel him not to accept.

The Two Basic Types of False Acquaintance/Date Rape Reports

In my experience as a criminal defense attorney, I've found that false "acquaintance rape" and "date rape" accusers tend to fall into two rough categories.

First, there are those who seek revenge against the accused: the jilted lover, disgruntled employee, or custody-seeking ex. Their reason for wanting to cause harm to the accused is transparent. Fortunately, that usually means it is also easily exposed to both judge and jury.

Second, there are those who seek not to annihilate another's reputation, but instead to preserve their own - albeit at another's expense. Some are young women who are trying to cover up, to their parents, the fact that they are already sexually active. Others are men or women in relationships who are trying to cover up, to their partners, that they have committed an infidelity.

A seemingly remorseful witness once told me, "I knew if I cheated, my boyfriend would beat me. The only way out of the beating, for me, was to play the rape card." You read it correctly: The rape card.

Not too long ago, I represented an Ivy League honor student who'd spent a weekend at a beach party coupled with a woman to whom he was introduced by a mutual friend. According to the client - and about a dozen witnesses - the two seemed to really "hit it off." When the party ended on Sunday night, they said their good-byes, like everybody else, and maybe even promised half-heartedly to call each other.

Imagine my client's surprise when on Tuesday, he received an angry call from his paramour's estranged boyfriend - a boyfriend whose existence she failed to disclose when the pair were kissing beyond the crackle of a bonfire.

Of course, this was nothing compared to his total shock when, two weeks later, he received a warrant in the mail commanding his appearance in court on felony rape charges.

The Need to Make False Rape Accusations a Felony, With Serious Penalties

There are several ways in which states may crack down on false rape reports, while still allowing genuine rape claims to be successfully prosecuted.

First, states can increase penalties for false reporting, which are often minimal.

For instance, in Colorado - where Kobe Bryant will be tried - the crime of "False Reporting to Authorities" - "mak[ing] a report . . . to law enforcement authorities of a crime or other incident when [the reporter] knows that it did not occur" - is merely a class three misdemeanor.

Accordingly, the maximum penalty for a violation is a fine, ranging from fifty-bucks to $750, and up to six months in the county jail. And of course, someone without a prior criminal record is highly unlikely to serve more than a few weeks, if any time at all. Meanwhile, a misdemeanor conviction is not the kind of blemish on one's record that will likely stop a false accuser from getting a job, enrolling in college, or even voting for president.

States should make the crime of false reporting a felony, with penalties serious enough to have a strong deterrent effect. Currently, the stakes are far too low for the accuser, given how very high they are for the accused.

Compare Bryant's exposure: If found guilty, he will serve a sentence up to life in prison. He would also be branded a Class A felon, and most likely, a sex offender. (Even when released, he'd face slim prospects: He was drafted into the NBA at the tender age of 17, and thus lacks the college education upon which many other professional athletes can fall back on.)

In sum, he will move from stardom and security to incarceration and, later, Megan's List. Shouldn't an accuser who has forced him to risk this fate, also risk consequences herself if she is lying?

Juries Should Be Allowed to Express a Finding That An Accuser Lied

In addition to imposing serious penalties for false reports, states should also give juries that conclude the accuser has lied, a way to voice that finding - allowing them to render a "Not Credible" verdict along with their "Not Guilty" verdict. Otherwise, the taint of the prosecution will linger.

An acquittal, of course, only means the prosecution has failed to prove its case beyond a reasonable doubt - and the public knows it. So to truly get justice, one who is falsely accused needs more than an acquittal: He needs a finding that the accuser lied.

The current law, however, simply ignores that the false report has happened. It's not just that it doesn't provide for a "Not Credible" verdict. It's also that it gives a false accuser a second bite at the apple: She (or he) can still go on to bring a civil case for damages. Because the standard of proof in a civil suit is lower, it is not precluded by an acquittal.

Perhaps a "Not Credible" verdict, then, ought to bar a future civil suit by the accuser, as well. It only makes sense: A finding of a lie ought to prevent the false accuser from using that lie as the basis for a future case.

How the Current Justice System Fails to Provide Justice to the Falsely Accused

One might point out that the falsely accused do have some recourse, even in the current system: They, too, can avail themselves of the criminal and civil justice systems, at least in theory. But in reality, these remedies too often miss the mark.

Are the prosecutors who indicted Bryant really going to do an about-face, after an acquittal, to go after his accuser? The chances of that happening are about as great as Kobe's wife trading in that four-million-dollar rock for a shopping spree at K-Mart.

And even if the prosecutors did so, they'd lose before the jury, precisely because of that about-face: Jurors would doubtless think, "You believed in her credibility enough to try to send Bryant to jail - now suddenly you believe she's a liar? I don't buy it, at least not enough to give you a 'beyond a reasonable doubt' conviction."

What about civil suits? To begin, forget about suing the prosecutor's office: Governmental immunity will most likely shield it from liability.

And while a civil suit by the accused against the accuser would be possible, it's not likely either. Defamation law includes a "judicial proceedings privilege" that makes it hard to sue based on testimony.

Meanwhile, contingency-fee attorneys may be disinclined to accept as a client someone who so recently was thought to be a criminal - and presented as one in the public eye. Their bread-and-butter is their ability to choose cases that are likely winners; an ex-defendant's case may not seem to be one of them.

Finally, the accused may, quite understandably, simply prefer to put this terrible chapter of his life behind him. And he may fear losing his civil suit, even if he's telling the absolute truth - in the end, it will still be essentially a "he said, she said" case.

For all these reasons, most of those who are falsely accused cannot get any kind of justice, either civil or criminal. And Kobe Bryant, if he has been falsely accused, will be no different.

Real Deterrents Are Needed to Prevent False Rape Reports

Society rightly makes great efforts to protect victims (who are usually women) against the ravages of rape and sexual assault. But shouldn't we also do more to better protect defendants (virtually always men) from being wrongfully accused?

False reports of rape are like other crimes: They can be deterred. Such reports are easy to make - all they require is a phone call and a police interview. They are also devastating. Yet accusers have little to fear, under current law, if they lie. If the stakes were higher, then those holding the "rape card" might see fit to fold.

Kobe Bryant's accuser may be telling the truth. If so, terrible consequences may follow for him. Or, she may be lying. If so, the consequences for her will likely be slight. That asymmetry needs to be remedied - and the law needs to take false reports of rape seriously, just as it takes rape itself seriously. Both can be life-destroying for the victim; both should be punished appropriately by our legal system.