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A parallel case to Bryant’s

In March 2002, the Colorado Supreme Court issued its opinion on the appeal of David E. Harris, an African-American who had been convicted at a jury trial of first- and second-degree sexual assault. The defendant’s defense was that the sexual encounter with the victim was consensual.

The 26-year-old Caucasian victim was approached by Harris in a park. When she rebuffed him after he attempted to initiate conversation with him, Harris dragged her through the park, donned a condom and raped her. Following the rape, Harris tossed the condom on the ground behind them.

Once Harris permitted her to leave, the victim ran to a sheriff’s station and reported the rape. She was transported to the hospital, where a rape examination was conducted. During the examination, the nurse examiner discovered an abrasion on the victim’s vaginal wall.



Police investigators discovered the used condom at the scene and test results indicated that the probable source of the semen it contained was Harris’. After obtaining the test results, police investigators interviewed Harris, who initially denied involvement with the victim.

After being confronted with the DNA evidence, however, Harris admitted he had had sex with the victim but asserted that the sex was consensual. At the close of the interview, Harris was charged with one count of first degree sexual assault, a class three felony, in violation of section 18-3-402(1)(a), C.R.S., the same section under which Kobe Bryant has been charged. An element of the sexual assault offense charged in both cases involves the use of force or violence.



Prior to trial, the prosecution brought a motion based on the rape shield statute to exclude evidence that the victim had had consensual sex four days before the assault. Harris objected, asserting that the prior sexual encounter could account for the abrasions.

The trial court conducted an “in camera” hearing, during which the victim testified that she had engaged in consensual intercourse with her boyfriend four days before the alleged assault.

The nurse examiner who had conducted the rape examination also testified out of the presence of the jury. She attested that during the course of her examination, she observed scratches on the victim’s arm and jaw as well as the vaginal abrasion. The nature and location of the vaginal abrasion were consistent with the victim’s report of forced penetration from behind. It was unlikely that the abrasion had occurred from the consensual sex four days earlier in that the normal sexual response is that the vagina is well lubricated when the sex is consensual and there would not be the friction that would result in an abrasion.



Further, even if the prior sexual encounter had resulted in the abrasion, as the vaginal tissue is very vascular in nature, the abrasion would have healed.

The trial court granted the prosecution’s motion and excluded the evidence on the basis of this testimony and “in view of the presumption in the rape shield statute.” At the close of trial, Harris was found guilty of sexual assault and immediately appealed his conviction.

The relevant issue on appeal to the Supreme Court was this: Was the evidence of the victim’s prior sexual encounter relevant and material and did it meet the statutory exception set forth in Colorado’s rape shield statute so as to allow admissibility? In other words, should evidence of the victim’s prior sexual encounter have been admitted at trial under the exception that it may have accounted for “the source or origin of semen, pregnancy, disease, or any similar evidence of sexual relations offered to show that the act or acts charged were not committed by the defendant”?

Additionally, evidence of the victim’s sexual conduct may also be admitted “if the defendant makes an offer of proof showing that the evidence is relevant to a ‘material issue’ in the case.”

In the Kobe Bryant preliminary hearing, this seems the same tack taken by defense counsel in inquiring of Detective Winters if the alleged victim’s injuries could have been caused by her having had sex with three men in three days.

First, the Supreme Court noted that although the rules of evidence generally favor the admission of evidence, the rape shield statute establishes a presumption that evidence relating to a rape victim’s sexual conduct is irrelevant. Generally, a victim’s sexual history is inadmissible. Unless an accused can make a preliminary showing that the evidence is relevant to some issue in the case, an inquiry into a victim’s prior or subsequent sexual conduct is barred.

In the Harris case, the defendant asserted that the evidence of the victim’s prior sexual encounter with her boyfriend should have been admitted under an exception to the rape shield statute to explain that the vaginal abrasion may have been caused by the victim’s prior sexual intercourse and not by Harris.

The Supreme Court sustained the trial court’s determination that the victim’s prior sexual encounter proved nothing. It was not relevant to the question of whether Harris committed sexual assault. Such evidence, the court held, would have shown only that Harris may not have caused the abrasion. It would not, and logically could not, have shown whether the victim consented to her sexual encounter with Harris.

The court reasoned that if the jury accepted Harris’ theory that consensual intercourse could have caused the abrasion, then the question of who caused the abrasion was irrelevant to whether Harris used force. Alternately, if the jury believed that only non-consensual intercourse could have caused the abrasion, the evidence of the victim’s consensual intercourse with her boyfriend was irrelevant to whether Harris used force.

Accordingly, evidence that the victim had had sexual relations with her boyfriend four days before her encounter with Harris was not logically relevant to whether Harris committed sexual assault.

For these reasons, Harris failed to discharge his burden of making a preliminary showing of relevance sufficient to rebut the rape shield statute presumption of irrelevance.

The Supreme Court also noted that at trial, Harris had had the opportunity to rebut the assumption that the abrasion could have resulted only from his sexual encounter with the victim. This was accomplished without having to introduce evidence of the victim’s prior sexual conduct. For example, during cross-examination, Harris’ counsel elicited from the nurse examiner that the abrasion could have resulted from prior consensual non-lubricated sex.

The court held further that Harris’ argument that the prosecution “opened the door” to the evidence of the victim’s prior sexual encounter by introducing evidence of the abrasion was unavailing.

Simply, even if the prosecution had “opened the door,” Harris could not demonstrate the evidence’s relevance as required by the rape shield statute.

Harris also argued on appeal that his inability to cross-examine the victim as to her prior sexual activities denied him his 6th Amendment right to confront the witness against him.

The court held, however, that the argument was without merit. The 6th Amendment right to confrontation and the 5th Amendment right to due process of law require only that the accused be permitted to introduce all “relevant and admissible evidence.” As the proffered evidence was irrelevant to the issue of the victim’s consent to sexual relations with Harris, its exclusion deprived him of no constitutional right.

In conclusion, the court held that the defendant had failed to rebut the rape shield statute’s presumption of irrelevance and that evidence of the victim’s prior sexual conduct was properly excluded.

I want to make explicit that in reporting the Harris case herein, I intend to offer no judgments whatsoever, particularly as regards any significance to the racial component of both cases. Instead, I have attempted to relate the salient facts fairly, accurately and dispassionately, finding remarkable the multiple points of convergence in the Harris matter and what has emerged to date, in the Bryant case.

There are, indeed, astounding (at least superficial) similarities between the two cases, among them: the racial component, the marks on the Harris victim’s and Bryant alleged victim’s jaws, the allegation of forced sex from behind, the vaginal abrasions, the prior and alleged prior sexual conduct of the victim and alleged victim, the initial denial of any sexual contact by the accused, the later assertion that the sex was consensual in nature, and the identical charges brought against the two.

In part, the job of a lawyer is to distinguish unfavorable cases. This then, in part, is the challenge facing the Bryant defense team. It will be interesting, to say the least, what creative efforts they may bring to bear in light of People v. Harris, which at first blush seems to present a formidable obstacle to establishing the relevance of the alleged victim’s prior sexual conduct in this matter.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He is a member of the Colorado State Bar Association Legal Ethics Committee and is a former adjunct professor of law. He may be reached at 970/926.4461 or at his e-mail address: robbins@colorado.net


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