Attorney John Clune said his 20-year-old client will have to talk with prosecutors about whether she will go ahead with the criminal case. He said she fears the recent release of court documents that refer to her sex life threatens her chance of getting a fair trial.
Asked if his client is considering dropping out of the case, Clune told The Associated Press: "That's something she and prosecutors will have to discuss in the immediate future. The DA's office will have to make that decision on what they want to do."
Prosecution spokeswoman Krista Flannigan said prosecutors had been told the woman would still participate even after the transcripts were released earlier this week.
"Nothing has changed with our plans of going forward with the prosecution of this case," she said. "The impression I got was that the victim needs to have strong resolve."
Flannigan said she didn't know if the case would proceed if the woman does not want to participate. The trial is scheduled to begin Aug. 27.
Bryant has pleaded not guilty to felony sexual assault, saying he had consensual sex with the woman at a Vail-area resort last summer. If convicted, he faces four years to life in prison or 20 years to life on probation, and a fine up to $750,000.
Clune said his client is considering filing a civil lawsuit against Bryant. A civil case requires a lower standard of proof than a criminal case, and could lead to the awarding of monetary damages but not prison time.
"This young woman is not going away. Whether it proceeds criminally or civilly or both, justice is going to be had for this young woman," Clune said. The woman's other lawyer, L. Lin Wood, said decisions on how to proceed should be made in a matter of days.
Clune and Wood surprised some legal analysts by appearing on television news shows Wednesday to discuss their client's concerns about the upcoming trial, leaving Flannigan to insist the case is moving forward.
CBSNews.com Legal Analyst Andrew Cohen said the woman's refusal to testify may doom the criminal case against Bryant.
"This is not a big surprise, especially after the ruling a few weeks ago that all but ensured that the alleged victim's sexual history, at least around the time of her encounter with Bryant, would be revealed to jurors," Cohen said. "I think the judge won't be surprised if there is no trial. I think prosecutors won't be surprised and I'm sure defense attorneys have been hoping for this for quite some time."
Cohen added: "If the criminal case is going to go away this is precisely how it is going to happen. The alleged victim will blame the judge for some of the rulings that went against her, and his court staff for all of the terrible mistakes they made that invaded her privacy, and then she'll prepare for a civil trial against Bryant that gives her better ground to battle on."
"It may be that (Clune) and his young client don't really know where they are going," said Scott Robinson, a Denver defense attorney familiar with the case. "It would seem odd to go this far and now give up. Maybe it is a mixed message because they have mixed emotions."
Larry Pozner, a past president of the National Association of Criminal Defense Lawyers, said Clune had issued a "white flag of surrender."
"His statement is the most impactful thing you could say to a jury: that you are rethinking the case," he said.
Under pressure from the U.S. Supreme Court, District Judge Terry Ruckriegle on Monday released transcripts from a closed-door hearing that were mistakenly e-mailed to The Associated Press and six other media organizations, which fought for the right to publish their contents.
The documents include testimony from a DNA expert for the defense who says she is convinced the accuser had sex with someone after Bryant and before she contacted authorities, a claim Clune has denied.
There was no testimony in the documents from a prosecution expert on the issue. Clune and prosecutors say the transcripts are one-sided and that a gag order in the case prevents them from presenting their explanation of the evidence.
Prosecutors have suggested the woman put on underwear that hadn't been washed before going to the hospital, transferring semen from a man identified only as "Mr. X" to her body.
The judge has said the defense can present evidence about the woman's sexual activities in the three days before the July 1, 2003, hospital exam, saying it is relevant to help determine the cause of her injuries, the source of DNA evidence and her credibility. The woman alleges Bryant raped her the day before the exam.
Clune and Wood have expressed their frustration with the released transcripts and other court mistakes that have breached the woman's privacy.