Rape Shield Laws: Definition & History

Instructor: Kenneth Poortvliet
When someone is accused of rape, the law sometimes limits the type of evidence that the defendant can present at trial. In this lesson, we will look at the definition and history of rape shield laws.

That's Irrelevant!

What if you were the victim of a rape, and the defendant at trial wanted to enter evidence that you had sex with two different persons in the past week leading up to the attack? Would you feel this is relevant? Even if you had consensual sex, does that mean you weren't raped by the defendant?

Now what if you were the defendant in that attack, and the judge excluded evidence that you and the victim had consensual sex in the past? If you're claiming that it was consensual for the alleged rape, isn't this relevant to your defense?

This is the dilemma that surrounds rape shield laws that try to protect the victim from irrelevant evidence that demeans their character while still allowing the defendant to put up a vigorous defense.

The Problem

The crime of rape is especially hideous as the victim is often again victimized by the investigative process. The humiliation of the incident itself compounded by questions from police and hospital staff, leads to the statistic that roughly only 35 percent of all rapes get reported, according to the Bureau of Justice Statistics' National Crime Victimization Survey.

The Victimization Survey also reports that the vast majority of reported rapes are male perpetrators and female victims, and at trial, many feel victimized again by the questions from the defense attorney. A woman's past sexual history may be put on display to either imply that she is somehow of low character or that she consented. This creates even more humiliation, and further many victims have no confidence in the criminal justice system, which also increases the likelihood that victims won't come forward.

The Solution

A rape shield law limits evidence of the past sexual history of the victim that a defendant can enter into trial to defend against rape charges. Critics say that these laws violate the defendant's Sixth Amendment right to confront one's accuser.

The History of Rape Shield Laws

Prior to the 1970s in America, any evidence of past sexual history was fair game in a rape trial. There were evidentiary rules that required all evidence to be relevant, but a good attorney could always find a way to make past sexual history admissible.

By the mid 1990s, most states had passed laws making it tougher to get evidence of past sexual history into trial. Also, the federal government passed the Violence Against Women Act of 1994, which applied rape shield rules in federal trials. Today, all states and the federal government have rape shield laws that restrict evidence of past sexual behavior.

Are They Constitutional?

Evidence of past sexual experience can be entered into a trial for two primary purposes. First, to impeach (discredit) the credibility of a witness. Once the victim takes the stand, then her credibility becomes a factor, and the issue of chastity has historically been allowed as relevant to the issue of credibility. The idea is, that if a woman is unchaste, then she is of questionable character and likely to lie. The Supreme Court has upheld modern rape shield laws that prohibit the use of past history to show the likelihood of not telling the truth.

Secondly, the past sexual conduct of the victim might indicate consent for the incident in question. This operates in two lines of thinking. One is that past sexual encounters with other men can be relevant to show the likelihood that consent was present in this case. The other is past encounters between the victim and the defendant can show consent was likely in the present case. In other words, if she said yes before, then she likely said yes now.

The Supreme Court has largely upheld laws that prohibit sexual history evidence for the purposes of impeachment as being irrelevant. However, when it came to the issue of consent, the Supreme Court held many laws to be unconstitutional as it disallowed the defendant to question the accuser on the issue of consent, which is highly relevant.

To determine this, the Court looked at the probative balancing test rule regarding relevant evidence. All relevant evidence must show that its probative value (relevance to the legal issue) outweighs any unfair prejudice to a witness or the defendant. Thus if the sexual history evidence has little probative value and it would severely prejudice the victim, then it can be excluded. But if the probative value was high, then even if the prejudice was high, it should come in.

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