Naming Kobe Bryant's Accuser

This is a partial transcript from "On the Record," Oct. 15, 2004, that has been edited for clarity.

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GRETA VAN SUSTEREN, HOST: Tonight, the woman accusing Kobe Bryant of rape identified herself by name. She did so in a revised version of the civil lawsuit she filed against NBA star in federal court. And last week the federal judge ruled the woman, 20-year-old Katelyn Faber (search ), must be publicly named in the case as a matter of fairness, or presumably the case would be dismissed.

Joining us in Los Angeles, Fox News political analyst and USC law professor Susan Estrich. Susan is also the author of a brand-new book, "How to Get Into Law School." Also in Los Angeles is victims’ rights attorney Gloria Allred. Welcome to both of you.

Susan, first to you. She filed this lawsuit against Kobe Bryant (search ) in federal court, asking for money to compensate. This isn’t a criminal matter. And she wanted to file it as Jane Doe. Judge said, No, use your own name. Do you agree with that?

SUSAN ESTRICH, USC LAW PROFESSOR, FOX NEWS POLITICAL ANALYST: Well, I can see the judge’s argument. Here’s my concern, which is the reason women are not required in general to be named in rape cases because of the recognition that there are still special stigmas that go with being a rape complainant, and frankly, special burdens that rape complainants often face. And if you have any doubt about that, although the case is different in many respects, look what happened to the woman in this case and the death threats and the unbelievable amount of trashing that went on about this woman.

And so many of us had hoped that the civil system might be an alternative for some women, where the burdens were a little bit less, cases might be easier to prove. All the reasons the defendant has protection when his liberty is at stake wouldn’t apply here. And for those reasons, you could argue for a lower standard in the civil system, Greta.

VAN SUSTEREN: But Susan, what if she is simply a liar?

ESTRICH: If she’s a liar she’s going to lose.

VAN SUSTEREN: But why, at the get-go, give her — I mean, I recognize the very personal nature of rape, compared to armed robbery or, you know, burglary.

ESTRICH: Right.

VAN SUSTEREN: But why this — you know, we don’t know whether she’s a liar until the end, until we’ve had the evidence.

ESTRICH: That’s right. And the reason you would give her some benefit of the doubt at the outset is precisely because we recognize that if she is a liar, at the end, we’re going to have plenty of time to hit her with sanctions, hit her lawyer with sanctions, sue her for defamation, if that’s what the defendant wants to do. But at the outset, what a rape victim faces when she comes forward is, believe me, not the same. And as I say, in this case, look what’s happened to her.

And if we can send a message — I’m not so worried about this victim. She’s had it and she’s had a terrible time. I’m just worried about the other women out there who may get the wrong message from this case.

VAN SUSTEREN: All right, Gloria, your thoughts on this.

GLORIA ALLRED, VICTIMS’ RIGHTS ATTORNEY: Well, it’s interesting because whether or not she’s telling the truth really is not related to whether her name should be on the civil lawsuit (search ). I do have mixed feelings about it. Ordinarily, her — a person’s name that is a plaintiff in a civil lawsuit should have their name on the civil lawsuit, but there are special considerations, as Susan has pointed out and pointed out very well.

VAN SUSTEREN: But wait a minute!

(CROSSTALK)

ALLRED: ... where there’s a celebrity involved, especially, because I do think that there — you know, there is certainly an imbalance of power and there will be heightened public scrutiny. And there may be death threats. And that is a concern. I’m concerned about whether women will be deterred from filing and seeking access in the criminal justice system, in the civil justice system, whether they will wish to assert their rights against persons that they believe have sexually assaulted them.

VAN SUSTEREN: But Gloria, let me stop you for one second. Maybe we need to sort of, you know, step back and sort of revisit — I mean, we recognize that, you know, the woman who’s a victim of a rape has not committed a crime. She is the victim of a crime, and a most unthinkable crime. But when you go to court and file a civil suit, presumably, it’s a chance for both sides to come and to work it out. And if you give protection to one, is that fair?

ALLRED: Well, you know, what the Constitution guarantees is that the defendant will have the right to confront the witnesses against him. And whether or not her name appears on the...

VAN SUSTEREN: That’s a criminal case. That’s a criminal case.

ALLRED: I know, but it’s — yes, but what I’m saying is whether or not her name appears in a civil case or in a criminal case, that defendant still has the right to confront the witness against him.

(CROSSTALK)

VAN SUSTEREN: All right, 20 seconds, Gloria — I mean, Susan. Then we’ve got to go.

ESTRICH: His rights haven’t been compromised in any way.

ALLRED: Exactly.

ESTRICH: This is about, in some sense, our curiosity at knowing just a little bit more. Now, the truth is, if I went on line the first day, I found her. But the real problem is everybody else out there who’s looking at this and saying, Would I like to be in this woman’s shoes? Would I have the guts to go through what she went through? And the answer in most cases is no. And how are we therefore going prevent rape, in the first place...

VAN SUSTEREN: And with that, I...

ESTRICH: ... which is what we want to do?

VAN SUSTEREN: And with that, I got to call. We should spend much more time on this topic. I’m sorry we don’t have more time. Susan, Gloria, thank you both very much.

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