How an NBA star tried to slut-shame his rape accuser into revealing her identity

“One could argue that it could be a lot better for victims to go the civil route because, first of all, it’s easier to prove the case [and] they have control over the case,” Aya Gruber, a law professor at University of Colorado, Boulder, who specializes in the intersection of feminism and criminal law, told me over the phone this week. “And second, they could get money at the end of the day. That being said, given this is a basketball player with a lot of money, people are going to naturally wonder if these aren’t just false or trumped up allegations from the ex-girlfriend to get his money.”

On this issue of the burden of proof, Gruber explained that to win a criminal rape trial, “ultimately, the prosecution has to prove the case beyond a reasonable doubt.” With a civil case, the required proof is less extreme (in part because the defendant doesn’t face jail time), which could mean a less strenuous and traumatic process for the victim—and an easier way to take down a famous man in power.

Daniel Medwed, a professor at Northeastern University School of Law, said the choice to pursue a civil trial could partially explain the lack of interest in Rose’s case. “The possibility that a celebrity could go to jail is very powerful,” he said in a phone conversation. Because his accuser is seeking justice in the form of money, there is ultimately less at stake for Rose. Essentially, fans could deal with a slightly poorer charged rapist on their team; they’d likely have a harder time dealing with the possibility that he could be put behind bars.

So, would a woman really lie about a brutal rape just to get money? It’s possible. But Gruber pointed out that “the allegation of rape is stigmatizing” and for a woman to expose herself to that, she “better be prepared for hell.” By lobbying to have her name released, it appears that’s what Rose is indeed trying to put her through. “It doesn’t matter if you look sexy on Facebook,” Gruber said. “A rape allegation is traumatizing.”

But Rose has been determined to brand his accuser as a slut and have her tried in the court of public opinion. “By putting it out there for the world that this is the woman who’s bringing the suit, he’s relying on dangerous tropes of female sexuality,” Deborah Tuerkheimer, a professor at Northwestern University’s Pritzker School of Law, told me in a phone call. She referred to his approach as “archaic.”

Indeed, the language in Rose’s motion for the judge to publicly reveal the victim’s name harkens back to any earlier time before women had, you know, rights and stuff. Before having full agency over one’s sexuality was encouraged. The official court document contends that the victim has no “legitimate fear of shame, humiliation, or embarrassment.” It continues:

Of special note, Plaintiff is publicly portraying herself as sexual. The production includes photos from Plaintiff’s Instagram account that are sexual in nature. In these images, Plaintiff is dressed in provocative attire, is in sexually suggestive poses, and is in photographs indicating that she engages in sexually charged encounters with more than one man at a time. Plaintiff’s use of twitter and other forms of social media further belies her apparent desire for anonymity.

In his decision, Judge Michael Fitzgerald expressed befuddlement over Rose’s reasoning, writing the court was “uncertain” what to make of it. “Defendant Rose appears to suggest that women who publicly portray themselves as ‘sexual’ are less likely to experience embarrassment, humiliation, and harassment associated with gang rape. Such rhetoric has no place in this Court. No matter how Plaintiff chooses to depict her sexuality on social media, her allegations of rape entitle her to the protections of anonymity.”

Preach, woke judge.

In the end, Rose’s request was both allowed and denied: The judge found no compelling reason to publicly release the woman’s real name, which also means that Rose’s defense will not be able to use her social media as evidence of her “sexual” nature at trial. He did, however, allow the disclosure of her name within the realm of the discovery, or fact-finding, process. This means that third party eyewitnesses, including people present at Rose’s house that night and other people familiar with their prior relationship, will be privy to her identity for the sake of understanding what exactly happened that night.

While it’s a relief that the judge stopped Rose from going public, the fact that Rose felt empowered to make this kind of request, that he thinks so little of this woman, seems like a loss for humankind. “It’s already hard enough to come forward in these cases without the idea of then having your name in the public eye,” Medwed said.

Luckily, the victim will not be tried in the court of public opinion—but maybe it’s time more men like Rose are.

Editor’s Note: After this piece published, the attorney representing Jane Doe reached out to Fusion to clarify that his client filed a criminal complaint in August of last year, and that the case is still under investigation by the Special Assault Unit of the LAPD. He also shared the following: “The choice of whether to proceed civilly or criminally, and in what order, was not actually a strategic one, but rather, the natural result of Ms. Doe’s fear, shame and reluctance to come forward. “

Marisa Kabas is a Sex + Life reporter based in New York City. She loves baseball, bunnies and bagels.