Rape shield laws place limits on evidence and evidentiary testimony that can be admitted during rape trials. Rape shield laws specifically restrict the introduction of sexual history evidence that is irrelevant to the charge at hand and that is introduced solely to call the victim’s character into question. Rape shield laws, which shield rape victims from the public scrutiny that might follow the introduction of sexual history evidence, were passed to protect the rape victim’s privacy rights. It was further argued that extending this sort of protection might encourage the reporting of rape. The first rape shield law was passed in Michigan in 1974 and since that time, all 50 states, the District of Columbia, and the federal government have passed rape shield laws.
Women’s and victim’s rights advocates have long argued that rape victims, more than any other class or group of victims, are revictimized at the hands of the criminal justice system. In addition to less than supportive receptions in the early stage processing, victims of rape had historically been subject to a public airing of their private lives at trial. Victims of rape often faced grueling cross-examination by defense attorneys who called into question virtually every aspect of the victim’s sexual history in attempts to discredit the current rape claim. Moreover, the sexual history evidence that was occasionally leaked and inevitably came out at trial frequently found its way into the public domain through the media. The rape victim often found herself in the untenable position of being a victim on trial. Those who endorse this view argue that this revictimization—or rather, the fear of it—has contributed to the vast underreporting of rape.
Evidence from the National Crime Victimization Survey (NCVS) suggests that official police counts of rape underestimate rape victimization by at least 60%, and many argue that the NCVS figure is itself an underestimate of rape victimization. Rape victims might refuse to report rape victimization for any number of reasons, but most acknowledge that this secondary victimization is chief among them.
Under rape shield laws, evidence regarding a rape victim’s prior sexual history is generally inadmissible unless it is directly relevant to the case at hand. The American Prosecutors Research Institute has compiled state rape shield laws, classifying them on the basis of what is generally inadmissible, what exceptions are permissible, and the circumstances for those exceptions. The most frequently appearing exceptions are those around former sexual conduct with the defendant. Other fairly common exceptions include exceptions granted when the introduction of such evidence might shed light on the source of semen, disease, injury, or pregnancy or when the evidence might rebut character evidence offered by the prosecution. When exceptions to the rape shield law are made, they are typically made on the basis of the relevance and probative value of the evidence that would otherwise be excluded. Because states have adopted varying means for dealing with exceptions, rape shield laws have been grouped into four broad categories: those that legislate exceptions, those that require exceptions when the defendant’s constitutional rights might be compromised, those that grant judges broad discretion as to what is admissible and what is not, and those that require the consideration of evidentiary purpose.
- American Prosecutors Research Institute. (2006). Rape shield statutes. Alexandria, VA: Author.
- Anderson, M. J. (2002). From chastity requirement to sexuality license: Sexual consent and a new rape shield law. George Washington Law Review, 70, 51–162.
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