Craig's Court: Names and Appearances

Posted March 30, 2004

What's in a name? The name by which people refer to you reveals a lot.

If someone calls you by your last name, like Manson, or Dahmer, or Bundy, you're none too popular with that person. When your first name is usually the one that gets called, chalk one up for a surplus of goodwill, like Oprah, or Tiger, or Kobe. Of course it helps to have a fun and unique first name but you get the point.

Look at how many headlines and broadcast stories refer to the defendant in this Eagle County rape case as Kobe. As long as that occurs, do not expect a conviction. When and if TV and radio types start referring to Bryant or even Kobe Bryant, the tide may have begun to turn.

Very few responsible journalists refer to Kobe Bryant's accuser by her given name. Instead, a debate has erupted over what she should be called instead -- victim, alleged victim, accuser, complaining witness. Colorado statutes tell us what the legislature thinks it should be. Victim it is.

Even in Colorado's rape shield statute, reference is made to the victim even though that statute clearly applies only before a defendant is convicted of anything. As Hal Haddon and Pam Mackey have pointedly asked, how does referring to the accuser as the victim square with a defendant's presumption of innocence? The answer is that it does not.

Trust me when I tell you that prosecutors gain a huge advantage with their ability to point to defense counsel table and dehumanize the accused by calling him a defendant. If and when this case goes to trial, you will likely not hear Mark Hurlbert and his crew call Kobe Bryant anything other than the defendant.

Judges generally like defense counsel to refer to their clients in court as Mr. or Ms. Lastname but expect a few slips when referring to Kobe. Remember Pamela Mackey's famous slip-ups at the preliminary hearing when she referred to the complaining witness by name. For most legal analysts in the room, it appeared inadvertent. After all, never before have we witnessed any case where an adult victim could not be referred to by name in open court.

One wonders whether use of the alleged victim's name is going to be allowed in Judge Ruckriegle's courtroom. Special circumstances really are involved here. Few accusers have ever been subjected to the level of scrutiny and threats that this young woman has endured. The majority of the complaints set forth in her mother's recent letter to the court seem extremely legitimate.

However, it is not fair to say that Kobe Bryant's life has been largely unaffected by her daughter's accusation. Many millions of dollars have been lost in endorsements, attorney fees and investigators. Don't forget the jewelry. Even with the bling bling, Vanessa Bryant may be taking more of Kobe Bryant's money if and when a divorce occurs. That would be after the case is over, of course.

More significantly, Kobe Bryant has lost his good reputation. Unlike a lot of his NBA contemporaries, Kobe Bryant had a very marketable squeaky clean image before the rape allegation and the admitted adultery. Now, Bryant is the routine subject of late night jokes on Leno and Letterman. Go to any Internet search engine and put in "Kobe jokes" and you will see hundreds of attempts at humor.

Some attempts at humor have also been made with respect to the alleged victim. Such joking is inappropriate. No matter how you slice it, this case is a tragedy, not a comedy. While comic relief is something any serious situation needs, it is important not to make matters worse.

This past week, many members of the media, including me, saw the accuser in person for the first time. The public saw only a rear view of her that was run on some TV programs and in some newspapers. There was a big debate among media players over whether this visual image was appropriate.

Do appearances matter? I was asked many times what I noticed when looking at this young lady. I described her as composed and stoic and told Paula Zahn and a prime time CNN audience that anybody who could read something into her appearance is a lot smarter than I am.

But what about her looks, her weight, her height? Does any of that matter? If she is tall and gorgeous, does that make a rape more likely? If she is fat and ugly, does it suggest that she must have been the sexual aggressor? Upon reflection, the best answer to all the above questions is no.

True rape really is a crime of power and control. The beauty of the victim generally does not matter. Accordingly, I hereby pledge to never again discuss the accuser's physical appearance.

Neither does it matter that Kobe Bryant did or did not wear a tie to court on any given day. Every movement of the LA Laker is also scrutinized whenever he steps out of the Eagle County courtroom. Cameramen click away to see if they can catch a new expression on Kobe Bryant's face. If anybody can empathize with the accuser's mom’s complaint, it is probably the accused. Remember that Kobe Bryant has a mother too.

Craig Silverman is a legal analyst for 7NEWS. He will be contributing his thoughts on the Kobe Bryant case in the months to come. He works for the downtown Denver law firm of Silverman and Olivas, P.C., which you can contact through their Web site or by calling (303) 595-0529. You can read Craig's bio here.

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