The end to the Kobe Bryant case can be seen as a demoralizing defeat to advocates of sexual assault survivors because of the emotional toil Bryant's accuser endured from the incident and during the anticipation of the trial. Immediately after the charges were dropped, Bryant issued a surprising statement which purported to express understanding of his accuser's emotions. Even if you question Bryant’s sincerity or motivation in issuing the statement, the content of the statement illustrates a common situation involving acquaintance rape:
"First, I want to apologize directly to the young woman involved in this incident. I want to apologize to her for my behavior that night and for the consequences she has suffered in the past year. Although this year has been incredibly difficult for me personally, I can only imagine the pain she has had to endure. . . .
I also want to make it clear that I do not question the motives of this young woman. No money has been paid to this woman. . . . Although I truly believe this encounter between us was consensual, I recognize now that she did not and does not view this incident the same way I did. After months of reviewing discovery, listening to her attorney, and even her testimony in person, I now understand how she feels that she did not consent to this encounter."
Every mental health professional knows that sexual assault survivors suffer devastating consequences that result in severe damage to the intimate and emotional relationships that they develop throughout their lives.
Bryant's accuser’s situation is all too familiar. She alleges that she has been raped, but he alleges that the encounter was consensual. Most often, these circumstances make a rape conviction almost impossible without physical injury. Commonly, the sexual assault survivor delays reporting, further calling into question her allegations that she was raped. A rape is a horrible act of misogyny. However, whether you believe Bryant or not, a significant number of men avoid prosecution because they allege that they made an honest, albeit aggressive, mistake. The consent defense is effective because juries believe that naive young men mistakenly interpret a woman's failure to resist due to intoxication or paralysis from fright as consent. Moreover, when a woman apologizes to her date because she does not want to have sex, an unforgiving jury acquits the accused because she didn’t resist strongly enough.
After the criminal system fails the acquaintance rape survivor, an alternate opportunity remains in the civil system. Historically, the prosecution fails because society believes that men do not maliciously harm their female acquaintances. People want to believe that the epidemic of date and acquaintance rape is caused by something other than a generation of criminals and rapists.
Just as we learned from OJ Simpson, where the criminal system can not provide justice, the civil system can provide monetary compensation. A civil claim can be much easier than a criminal trial because the burden of proof is almost half as difficult to overcome, and the accused can be drilled with questions by the opposing attorney just like the accuser.
Bryant alleges that he understands that his survivor’s motivation for bringing a civil claim is not motivated by financial gain, but by acquiring a resource from which she can help heal a severe injury. Just as society understands that victims of physical injury are not motivated by financial gain, it will also recognize that the survivors of sexual assaults are not motivated by financial gain, either.
People expect that a victim of alleged rape from a wealthy man like Kobe will eventually sue her accused because he has assets from which to satisfy a judgment. In addition, there is a loophole in the law for survivors to recover from young men without property or wealth, too. When the sexual assault survivor is credible that she sustained an injury, but can not overcome “the consent defense,” she can recover from the attacker’s home owner’s insurance.
The accused always alleges that he had consent because when he does, he escapes criminal liability. In circumstances like Bryant’s victim, the survivor can recover from the homeowner’s policy of the parents of the accused even when he is away at school. Such a remedy can deter future sexual assaults and trigger widespread efforts at prevention.
The legal theory is quite simple. The attacker’s “consent defense” is the equivalent to claiming that he made a careless mistake just like the motorist’s mistake when he injures another motorist. The injured motorist can recover from the other motorist’s insurance company, and so can the sexual assault survivor who is defeated by her attacker’s “consent defense.” A defeat in the criminal sexual assault trial gives birth to an insurable civil claim.
Although advocates of sexual assault survivors may be devastated from the prosecution dropping the charges against Bryant, his saga might have a silver lining after all. Even though Bryant’s statement was probably contrived by his attorneys, the mistake which he suggests gives an illustration of the insurable sexual assault claim. Although a successful civil lawsuit will not lesson a sexual assault survivor’s pain like a conviction would, such a lawsuit would chip away at the ignorance surrounding acquaintance rape and prevent future sexual assaults from occurring.
G. Lawrence DeMarco, LLM
The Public Record