Implications of influencing alleged victim
A week or so ago, the National Enquirer”blared the headline that “Kobe (was) trying to buy off [the] “rape victim’ for $5 million.”
Counsel for Mr. Bryant have denied the allegation. They are attorneys of broad experience and, I am certain, deep integrity. There is no reason to doubt Mr. Haddon or Mrs. Mackey.
This column stands in no way as a challenge to them. If they say it isn’t so, then I believe it isn’t so.
What we explore here are the “what ifs.” What if the Enquirer got it right? What would be the implications? Simply, may an accused buy his way to innocence?
As an absolute, an alleged accused cannot purchase testimony. In layman’s terms, so doing amounts to witness tampering and, perhaps worse, bribery.
But there are some interesting shades of gray here. First, there is the potential issue of a companion civil action; might the alleged victim at some time file (or threaten to file) suit against Mr. Bryant seeking to recover money damages from him? In that arena, there would be nothing improper about reaching a financial settlement with her.
I have no idea what the evidence in this case may be. Certainly, one supposes that in bringing charges, the district attorney has in his quiver certain compelling physical evidence and, perhaps, collaborating witness testimony.
It cannot be denied, however, that at least one of the pillars upon which the prosecution’s case is founded is the expected testimony of the alleged victim. Presumably, she has already given substantial testimony which the DA believes to be sufficiently credible to sustain the allegations against Mr. Bryant.
The question arises, then, what if she suddenly gets amnesia? In more crass terms, what if $5,000,000 or so were dangled before her and the promise of future economic security was blinding? What if the allure of sudden riches were to change how she remembered things?
It is important to understand that unlike in civil actions, when criminal charges are brought, the dispute is not simply between the individuals involved. If I sue you for money damages, the dispute is intensely personal; I sue you to recover for my losses. This is between you and me and no one else.
In criminal matters, however, things are different. Once charges are leveled, the dispute officially exists between The People of the State of Colorado and the accused.
Accordingly, once the ball of criminal justice starts rolling, it develops a momentum out of the control of the person who gave it its initial push. If an alleged victim recants, changes his or her mind, or for whatever reason, pleads that charges be dropped, it is not incumbent in any way upon prosecution to do so.
As a practical matter, however, in any case which rests heavily upon the testimony of the alleged victim, the alleged victim’s unwillingness to cooperate can land a devastating blow to prosecution of the case.
So what if the alleged victim succumbs to temptation? What if a substantial sum of money were, in fact, offered with the implication that in accepting it, she must shade her testimony toward the consensual meretricious act that Mr. Bryant claims? What if, at the time of trial, the alleged victim “remembers” things differently. What if, after calm reconsideration, what seemed at first like an assault is now recalled as rough but consensual sex?
Stated in its simplest terms, no such deal can be expressly struck. Neither Mr. Bryant nor his minions can engage in such explicit horse trading. They cannot strike a tit-for-tat deal wherein, Mr. Bryant pays a certain sum of money in return for favorable testimony.
But what if in the context of negotiating a civil settlement, it occurs to the alleged victim without any words at all being spoken that the civil settlement and her “cooperation” at trial are intimately intertwined? What if she makes the connection all on her own?
Besides the issue of what this would do to permanently undermine her credibility, to make her out to be precisely what her detractors already suspect, it would underline our system of laws itself. It would state, unequivocally, that with wealth and influence, innocence may be purchased just like any other fungible commodity. And, of course, this would be a truly terrible signal to send.
But could Bryant or his representatives be punished if money were exchanged for the victims sudden “revelation” that things are different than she first thought? Maybe. But only if the connection between the two is unequivocal.
The grayer area is what if the two are connected only by the most subtle implication? What if all that exists to connect the dots is the certainty that Mr. Bryant has that the alleged can’t but understand the interrelationship all on her own?
The Enquirer article drew an analogy between the Byrant matter and the case where Michael Jackson was accused of sexually assaulting a young boy. There, a financial settlement was reportedly struck where Jackson paid the alleged victim a considerable sum.
Al least three things are different here, however.
First, criminal charges were never brought against Jackson. Therefore, any settlement paid was in the nature of a civil settlement.
Second, the alleged victim there was a minor and, accordingly whatever statements had might have given to authorities are not subject to the level scrutiny under the penalty of perjury that have presumably, been made by the alleged victim in the Bryant case.
Third, Jackson denied that sexual conduct ever took place. Here, Mr. Bryant has admitted as much. The only question remaining is whether the act was or was not consensual.
If the alleged victim in the Bryant matter were to now recant in contemplation of a payday, conceivably she could be subject to charges of perjuring herself based on prior sworn testimony in the form of affidavits and the like. Again, however, it would have to be proved beyond a reasonable doubt that she intentionally deceived rather than simply “rethinking” the events. And that would, presumably, be difficult to prove.
Too, the DA would have to have the stomach to prosecute charges against her and, in light of what might then be the embarrassing circumstances of this case, one would be hard pressed to believe that the DA would do so.
If the Enquirer holds even a shred of truth, it is a sorry statement for democracy. However, human nature being what it is, one can understand (if not support) the temptation on Mr. Bryant’s part to put the matter behind him and the allure to the alleged victim to secure her monetary future, presumably for life.
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 926-4461 or firstname.lastname@example.org
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