Rape Shield Laws: When Do They Not Hold In Court?

Rape shield laws are designed to protect victims of sexual assault during criminal proceedings. They limit the ability of the defendant to introduce evidence about the victim's past sexual activity or to cross-examine them about their past sexual behaviour. These laws are in place to prevent victim blaming and the emotional distress it causes, and to keep the focus on the actions of the accused, rather than the victim's past. However, there are certain circumstances in which rape shield laws do not apply, and evidence of the victim's sexual history may be admitted. This includes when the evidence is used to prove that someone other than the defendant was the source of semen, injury, or other physical evidence, or to prove consent. Evidence may also be admitted if its probative value substantially outweighs the potential harm to the victim and the danger of unfair prejudice to any party.

Consent

Rape shield laws were introduced to address the historical treatment of victims of sexual crimes, who were often subjected to humiliating and embarrassing character attacks during trials. Defendants would present evidence of a victim's sexual history or behaviour to paint them as immoral and unchaste, implying that their "impurity" made them untrustworthy. Such tactics served as a strong disincentive for victims to report sexual crimes.

Rape shield laws now limit the ability of defendants to introduce a victim's sexual history or behaviour as evidence during a rape trial. This type of evidence is typically considered irrelevant to the charges and is more akin to character evidence. However, in specific situations, evidence of consent may be deemed admissible, and rape shield laws may not apply.

For instance, in the United States, evidence of specific instances of a victim's sexual behaviour with respect to the defendant may be allowed if offered by the defendant to prove consent. This exception recognises the direct relevance of such evidence in certain cases. Similarly, in Canada, while there are strict rules restricting the admissibility of a victim's sexual history, exceptions exist. Evidence of a victim's sexual activity may be admitted if it is offered to prove consent or if offered by the prosecutor.

In summary, while rape shield laws aim to protect victims by limiting the introduction of their sexual history or behaviour as evidence, there are exceptions when it comes to consent. Evidence of consent may be permitted in specific circumstances, particularly when it is directly relevant to the case and necessary to protect the defendant's constitutional rights.

Shared history

When Rape Shield Laws Do Not Apply in Court

Rape shield laws are designed to protect the victims of sex crimes during criminal proceedings. They limit the ability of the defendant to introduce evidence about the complainant's past sexual activity or their sexual behaviour. The laws are intended to prevent victim blaming and the emotional distress it causes, while keeping the focus on the actions of the accused.

Rape shield laws generally apply to both federal and state criminal and civil rape cases, except in limited circumstances. One such circumstance is when there is a shared history between the accuser and the accused.

Rape shield laws may not apply when there is a shared history between the accuser and the accused. This includes instances where the defendant can prove that the accuser consented to the sexual activity in question, or where there is evidence of a prior sexual relationship between the two parties.

For example, a defendant may be allowed to introduce evidence of a previous consensual sexual encounter with the accuser to support a claim that the incident in question was a continuation of their consensual relationship, rather than rape. Similarly, if the defendant can provide evidence that the accuser has made false allegations of rape in the past, this may also be admissible.

In some jurisdictions, such as Arizona, rape shield laws allow for some inquiry into specific instances of sexual conduct by the victim if it is relevant to the issues raised in the case. For instance, if the victim had previously consented to bondage during a consensual sexual encounter, this could be introduced as evidence to show that any tying up of the victim during the incident in question was done in the context of consensual sexual activity, rather than to force them into sex.

Another example of when a shared history may be relevant is when a defendant offers evidence that a victim claiming pregnancy or a sexually transmitted disease resulting from the alleged rape actually became pregnant or infected due to a sexual encounter with another individual.

It is important to note that even when there is a shared history, the admissibility of evidence is still subject to the discretion of the court and the specific laws of the jurisdiction. The judge will balance the relevance and potential prejudice of the evidence before allowing it to be admitted.

Additionally, in some states, such as California, a defendant cannot simply offer evidence of the victim's prior sexual conduct in court in front of the jury. Instead, they must make a special motion to the judge, stating that they have an "offer of proof" to make. This motion must be supported by a sealed affidavit showing the relevance of the evidence, and if the judge finds the offer of proof sufficient, a closed hearing will be held to determine if the victim must testify about their prior sexual conduct in open court.

Other Exceptions

In addition to a shared history, there are a few other limited circumstances in which rape shield laws may not apply:

• Alternative Source of Physical Evidence: If the defence can demonstrate that physical evidence, such as semen, DNA, or injuries, could have come from someone other than the accused, evidence of the victim's consensual sexual activity with another partner may be admitted.
• False Allegations of Rape: If the defence can provide evidence that the victim has made false allegations of rape in the past, this may be admissible.
• Mistaken Identity: If the accused claims that they have been mistaken for the perpetrator due to a physical similarity, evidence of the victim's sexual history might be admitted if relevant to proving this claim.

Defendant's constitutional rights

Rape shield laws are designed to protect victims of sex crimes during criminal proceedings. They prevent defendants from introducing evidence of victims' sexual behaviour, history, or reputation. The first rape shield law was passed in the US state of Michigan in 1974, and within two decades, almost every US state had enacted one.

Rape shield laws have been challenged by defendants on several grounds, including the violation of their constitutional rights. Here is a detailed look at the defendants' constitutional rights and how they are balanced with the application of rape shield laws:

Defendants' Constitutional Rights:

Right to Confront Accuser:

The Constitution guarantees defendants the right to confront their accusers at trial. Defendants have argued that rape shield laws violate this right by preventing them from presenting evidence of the victim's previous sexual behaviour and reputation. However, courts have generally rejected this argument, holding that the right to confrontation does not include the right to present irrelevant evidence. For example, in People v. Cornes (1980), an Illinois court ruled that a defendant's right to confrontation does not extend to presenting irrelevant evidence such as the victim's reputation and sexual acts with others.

Right Against Self-Incrimination:

The Fifth Amendment protects defendants from being compelled to incriminate themselves. Defendants have challenged rape shield laws, arguing that disclosing evidence before trial and potentially admitting to certain conduct amounts to self-incrimination. However, courts have consistently denied these claims. For instance, in People v. Blackburn (1976), a California court upheld a law requiring an out-of-court hearing to determine the admissibility of character evidence related to the victim.

Right to Fair Trial and Equal Protection:

Defendants have also challenged rape shield laws on the basis of their right to a fair trial and equal protection under the law. They argue that these laws infringe on their ability to present a defence and treat men unfairly. However, courts have rejected these claims, reasoning that rape shield laws serve a compelling state interest in protecting victims from humiliation and ensuring a fair trial for both parties.

Freedom of Speech:

Some opponents of rape shield laws argue that they violate civil liberties, including freedom of speech, by restricting the defence's ability to introduce certain evidence.

Right to Due Process:

In some cases, defendants have successfully argued that excluding certain evidence would violate their constitutional rights, including due process. For example, statements where the victim expressed an intent to have sex with the first person they encountered might be admissible to protect the defendant's due process right to prove consent.

While defendants have challenged rape shield laws on constitutional grounds, courts have generally upheld the laws, balancing the rights of the defendant with the need to protect victims from irrelevant and prejudicial evidence. The application of rape shield laws may vary depending on the specific jurisdiction and the discretion of the court.

Relevance of evidence

Rape shield laws are designed to protect the victims of sex crimes during criminal proceedings. They limit the ability of the defendant to introduce evidence about the victim's past sexual behaviour or reputation.

Rape shield laws generally exclude a wide range of evidence related to the victim's past sexual history. This includes the victim's sexual reputation, evidence of past sexual experiences with persons other than the accused, or any other sexual behaviour that may be used to discredit the victim. The aim is to focus the court's attention on the specific incident of alleged rape rather than the victim's past.

However, there are exceptions to these laws, and certain types of evidence may be admitted if it is relevant to the case. Evidence can be admitted if it is used to prove that someone other than the accused was the source of semen, injury, or other physical evidence. For example, if semen is found but the DNA does not match the defendant, evidence of the victim's consensual sexual activity with another partner may be admitted to support the defendant's claim of innocence.

Evidence of prior consensual relations between the accused and the victim may also be admitted if it is directly relevant to the case. For example, if the defence argues that the incident in question was a continuation of their consensual relationship rather than rape, text messages, emails, or other forms of communication showing a pattern of consensual sexual activity may be used.

In some cases, evidence of false allegations of rape made by the victim in the past may also be admissible. For instance, if there is documented evidence of the victim admitting to lying about rape or if their claims were proven false in court.

Additionally, if the accused claims that they were mistaken for the perpetrator due to a physical similarity, evidence of the victim's sexual history may be admitted if relevant to proving this claim.

It is important to note that these exceptions are not automatic and require a motion to the court. The judge will consider the relevance and potential prejudice of the evidence before allowing it to be admitted.

Application in Civil Lawsuits

Rape shield laws can also apply in civil lawsuits, although the protections they provide are not as absolute as in criminal cases. Civil courts have more discretion to weigh the probative value of the evidence against its potential prejudicial effects. However, the primary goal remains the same: to protect victims of sexual assault from re-traumatization by intrusive and irrelevant questioning about their past sexual behaviour.

For example, in sexual harassment or assault lawsuits, the defendant might want to introduce evidence of the plaintiff's sexual history to challenge their credibility or the severity of their emotional distress. Under rape shield laws, such attempts would generally be blocked, and the court would typically only allow evidence directly pertaining to the case that does not cause unnecessary harm to the plaintiff.

In divorce or custody cases, rape shield laws can limit the introduction of evidence of one party's sexual history as evidence of bad character or unfit parenting. The court would likely admit such evidence only if it directly impacts parenting capabilities or relates to the well-being of the child.

In personal injury cases following a sexual assault, the defence may attempt to bring up the victim's past sexual behaviour to undermine their claim of psychological trauma or emotional distress. Rape shield laws can be invoked to prevent the defence from introducing such potentially harmful and irrelevant evidence. The court would typically only admit evidence of the victim's past sexual behaviour if it is directly relevant to the injuries claimed or the incident in question.

Victim's sexual history with defendant

Rape shield laws are designed to protect the victims of sex crimes during criminal proceedings. They prevent defendants from introducing evidence of victims' sexual behaviour, history, or reputation.

In the US, the first rape shield law was passed in the state of Michigan in 1974, and within two decades, almost every US state had enacted one. These laws are more protective of the confidentiality of rape victims' prior sexual conduct with individuals other than the defendant than of the victims' prior consensual sex with the defendant. For example, a rape defendant would have a more difficult time trying to call the victim's ex-partner to the stand than introducing evidence that the defendant had been in a relationship with the victim. This is because a victim's sexual conduct with third parties is generally considered irrelevant to the issues raised in the alleged rape, while evidence of a victim's conduct with the defendant may relate to consent during the alleged rape under certain circumstances.

However, rape shield laws do not always apply. In some cases, a victim's sexual history with the defendant may be used as evidence. For example, evidence of a victim's prior consensual sexual relationship with the defendant may be introduced to prove consent. Evidence of a victim's sexual history with the defendant may also be admitted if its exclusion would violate the defendant's constitutional rights.

In addition, some states provide less protection from the disclosure of a rape victim's prior sexual conduct if the conduct is shown to be particularly relevant to the case and not overly harmful to the victim. In these states, defendants must make a special motion to the judge, stating that they have an "offer of proof" to make to the court. This motion must be supported by a sealed affidavit showing the relevance of the evidence. If the court finds the offer of proof sufficient, it will order a closed hearing in which the victim will be called to testify on their prior sexual conduct. Only after this hearing will the court decide if the victim must testify about their prior sexual conduct in open court. The court will allow the introduction of the victim's prior sexual conduct at trial only if it is relevant to the case and the relevance of the evidence outweighs its prejudicial effect.

Frequently asked questions