So you knew I'd get around to talking about Kobe Bryant eventually. And I won't disappoint, with a quick preliminary take on some of the elements of the case and what it says about us as a nation.

There are several issues here which seem important to consider. The always trenchant Steven den Beste discusses one of them today: the perception that the standard of proof (and hence, the presumption of innocence) is much less rigorous in rape trials than others. He observes that in most violent crimes, if a victim and an accused offer testimony which contradicts one another, acquittal is the normal result in the absence of additional evidence. This is a good thing, otherwise the entire criminal justice system is reduced to the rigor of a good-old-fashioned witch trial, where conviction requires nothing generally more than an accusation to be offered. In most civilized nations that sort of criminal justice system is known as a "kangaroo court."

From the portions of the Bryant proceedings which I've been unable to ignore, despite my most strenuous efforts, I can gather that (a) this young woman voluntarily joined Mr Bryant in a forum--shall we say--outside her normal professional duties; (b) both parties agree sexual intercourse was consummated; (c) this young woman says the sex was not consensual; (d) Mr Bryant says it was. I've not heard of any hard proof except that it can be forensically demonstrated that the two did, in fact, have sex.

Now rape is a difficult crime to prosecute for a lot of reasons, not least because additional eyewitnesses are often not available, and victims are sometimes reluctant to confront their alleged attackers. But prosecution is made easier by the unusually broad definition of the crime. I would suggest there is a grave difference between forcible, violent, coercive rape; and a situation where a woman suddenly feels uncomfortable and maybe changes her mind in the midst of a previously consensual encounter and her partner is not overquick in adapting to her new mindset. Yet both are treated essentially identically under the law. It's mainly the latter type, acquaintance rape, that most of what I'm saying here applies to.

That such an offense as this, which is nearly unprovable, is criminal does suggest a willingness on our nation's part to have our criminal justice system produce convictions even in the face of an utter absence of proof--just an accusation, and a jury's decision that the accuser and her accusation are more credible than the accused's denials. And in a trial for an alleged crime with no witnesses and no physical evidence, the jury can't take two opposing statements from individuals they don't know and decide beyond a reasonable doubt that the woman accuser is being truthful without the defense having a chance to counter with attacks on the accuser's credibility. The manner in which the crime is alleged and (attempted to be) proven allow the defense no other avenue, no matter how unfair this may seem to women in general and to the accuser in particular. It's unpopular to say, but if a woman really does have sex with three different men in three days then she's less credible an accuser, with her protestations of innocence of her intent, than one who doesn't. If an accuser can offer no proof at trial but her word, she has to be prepared to have the credibility of her word examined vigorously.

None of this absolves rapists of anything. But there's a balance between victim's rights and accuser's rights, and assigning automatic credibility to an accuser in a case without physical evidence--just because she's a woman, and women wouldn't lie about such things--reflects an unfortunate shift away from the presumption of innocence.

The enactment of laws pertaining to special crimes, with special standards for prosecution and conviction, from which only a portion of the population can obtain easy convictions, seems decidedly contrary to the spirit of American jurisprudence. But my biggest objection to all of this is that the range of penalties, at least in Colorado, is also so broad as to possibly be unconstitutional. My understanding is that if Mr Bryant is convicted of this crime, on the mere strength of his accuser's word, the judge can impose any penalty he damn well pleases, from simple probation up to and including life in prison. Felonious assault--having some scumbag beat the crap out of you, with a weapon capable of inflicting fatal harm--doesn't usually have a range of penalties which include life in prison.

Laws which are draconian all out of proportion to similar-sounding offenses are usually the result of disproportionate influence or corruption in the bodies making the laws. In Ohio it's a misdemeanor to lie to police in reporting a theft; but God forbid you should repeat that same lie to your insurance company, or you are suddenly guilty of a felony. I'm left to wonder what rational standard could produce the belief that lying to a private company with which you conduct voluntary business is worse than lying to law enforcement while they attempt to investigate a crime. Insurance companies and their interests are, shall we say, extremely well-represented to lawmaking bodies in this country.

I would warrant that women, long considering themselves an oppressed minority, have achieved similarly excellent representation among lawmakers. Recall the American Political Axiom at the top of this page; a certain group of politicians emphasises special treatment or consideration for women, or racial minorities, whichever. This can take the form of affirmative action, or reduced threshholds of proof in prosecuting felony cases. That demographic group votes disproportionately for the politicians urging their cause. That same group of politicians, recognizing the best source for perpetuation of their own power, panders to that demographic all out of proportion to justice.

Out of proportion to justice? For no other type of crime but date rape is the burden of proof so low, and the discretion of the judge so broad, as to enable largely arbitrary "justice" to be dispensed based on the disposition of the judge. I think our culture of sensitivity and empowerment of women has become guilty of overreach on this one.

Naturally this may result in a large number of flaming angry emails; but I'd ask you to regard this in the spirit of an honest inquiry of gender equality issues before you label me as a pig of some sort (whatever the current nom-de-oppression is these days). If Mr Bryant did rape that young woman I hope they find him guilty and he goes to prison. If he had done it forcibly and she had the results of medical exams to back up her claim that she had been violated by someone with Mr Bryant's DNA I'd agree wholeheartedly that he go away for a very long time. But I lack confidence in the proceedings to actually marry justice to the outcome, and fear that the scales are tilted such as to almost require active proof of innocence in these cases of accused date rape--again, cases where eyewitnesses and hard proof are already in short supply. This is not a standard consistent with historical American jurisprudence. Even in cases involving conspiracy and the notoriously elusive charge of racketeering, there is a fundamental presumption of innocence of the accused, and the charges need not be met with an active proof of innocence to result in acquittal. The noble causes of equality before the law, and gender equity, are poorly served by adopting specially lowered standards for prosecution of date rape, no matter how difficult.

Special treatment under the law is often a strong indication of early signs of tyranny, and even a tyranny of the majority is still tyranny. I'd urge everyone to pay attention to this case (though the media will ensure that at any rate), and to consider how they would respond to such a circumstance as a "he said/she said" when summoned to serve on a jury.

JKS.