Kobe Hearing: What Is Consent?

Judge May Issue Trial Date During This Week's Bryant Hearing

His season over, Kobe Bryant returned to court Monday for a two-day hearing that began with sharp arguments over how to guide the jury in determining whether the NBA star raped a woman.

Kobe Bryant's defense team wants the judge to tell jurors they must acquit the Los Angeles Lakers star if they determine his alleged victim consented to sex.

Bryant's defense team wants the judge to tell jurors they must acquit the Los Angeles Lakers star if they determine the woman consented to sex.

In essence, defense attorney Hal Haddon said, prosecutors must prove beyond a reasonable doubt that the woman did not consent to sex and that Bryant knew it.

Prosecutors say they must prove only that the sex was "against the alleged victim's will," an element that answers the consent issue.

"It's not the people's burden to disprove consent. By proving the elements (of sexual assault) you necessarily disprove consent," said Matt Holman, an assistant state attorney general helping with the case.

As for what Bryant knew, Holman said, it is enough for a defendant to know his behavior could cause submission by the alleged victim.

State District Judge Terry Ruckriegle did not immediately rule on the jury instructions.

Bryant, 25, has pleaded not guilty to felony sexual assault, saying he had consensual sex with the then-19-year-old resort worker at a Vail-area hotel where he stayed last summer. If convicted, he faces four years to life in prison, 20 years to life on probation and a fine of up to $750,000.

The judge has indicated he will discuss a potential trial date at some point during the hearing. Bryant's season ended last week when the Lakers lost to Detroit in the NBA Finals. He is expected to check out the free agent market after opting out of his contract with Los Angeles.

The jury-instruction debate rests on fundamental questions that could determine whether Bryant is convicted. Consent could be a key issue.

During the preliminary hearing, sheriff's Detective Doug Winters said the woman flirted and kissed Bryant in his hotel room and was attacked when she turned to leave. Bryant grabbed her by the neck, pulled up her skirt and raped her against a chair, Winters said.

She told investigators she told Bryant "no" at least twice, bursting into tears as the five-minute attack went on. The detective said she told Bryant at one point she wouldn't tell anyone what happened "for fear of -- she didn't want him to commit more physical harm to her."

Another jury-instruction matter is expected to be brought up during the hearing: Bryant's attorneys want jurors told investigators failed to collect evidence that could suggest Bryant is not guilty.

Part of the hearing will be closed when attorneys take up a motion from the defense to introduce information about the alleged victim's sex life in the days surrounding her encounter with Bryant.

Defense attorneys have suggested injuries found on the woman during a hospital examination could have been caused by "multiple" sexual partners.

The defense team has flooded prosecutors with paper, filing motions and seeking rulings on anything they believe could lead to an acquittal, or a reversal on appeal if Bryant is convicted.

A number of issues -- including the consent argument and media access to certain hearings -- have not been dealt with before in such detail in Colorado courts, experts say.

Appeals based on mistakes in jury instructions are common, lending additional importance to the issue, said Karen Steinhauser, a former prosecutor and visiting professor at the University of Denver College of Law.

"It's all technicalities, but it's technicalities that make the difference in terms of whether a conviction gets sustained or not," she said.

"The momentum is clearly on the side of Team Kobe going into the critical last rounds of motions hearings," 7NEWS legal analyst Craig Silverman said. "Team Kobe has won three straight motions and its momentum is obvious. As of now, it clearly appears as if the defense has better strategy, better teamwork, better lawyers and they want it more. Victory No. 1 this past month was having the judge rule Team Kobe's way regarding how the accuser would be referred to in court."

The accuser will be referred to as the alleged victim instead of just victim.

Ruckriegle also ruled that AT&T text messages the accuser exchanged with her ex-boyfriend within a couple hours after her encounter with Bryant were relevant to the case.

"Victory number three was the recent decision of the DA to abandon plans to retest the DNA. Clearly, this means that the DA is going to have to live with some scientific results that he did not like," Silverman said.

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