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Rape: Legal Aspects - Forcible Rape: Evidentiary Issues

defendant sexual cross woman

The administration of rape law has long been influenced by judges' preoccupation with the possibility of false charges and erroneous convictions. For centuries, English and American courts were obsessed with the idea that a woman might fabricate a rape accusation because she feared the stigma of having consented to intercourse. Judges also worried that a woman might falsely accuse a man for reasons of blackmail.

American race relations heightened the traditional concerns. White society, especially in the South, strongly condemned interracial sexual relations, and racial fears fueled a myth that black men were driven to rape white women. In this climate, a white woman suspected of intimacy with a black man was under considerable pressure to claim rape, and ordinary requirements of proof beyond a reasonable doubt offered a black defendant little protection in a trial before an all-white jury.

The traditional and the specifically American concerns generated special evidentiary rules that were virtually unique to rape cases. Nearly all states required independent corroboration of the complainant's testimony, and many instructed their juries to examine that testimony with caution. These special rules have been challenged, however. Critics argue that false charges are no more likely in rape cases than in any others, that strict corroboration requirements can be virtually impossible to meet, and that the ordinary trial process offers sufficient protection against erroneous results. Responding to such criticisms, the law has changed dramatically. Currently, no American state requires corroboration in forcible rape cases, and very few continue to authorize special jury instructions questioning the complainant's credibility.

Defense tactics at trial posed a further problem. It was once common for defense attorneys to subject the complainant to searching cross-examination, with a particular focus on her private life and prior sexual relationships. Such background facts were considered relevant (and therefore admissible as evidence) on two theories—that a woman who had consented to sex in the past was more likely to have consented to sex with the defendant, and that a woman who had engaged in "immoral" conduct was less credible as a witness. These theories and the tactics exploiting them had the effect of humiliating many rape complainants at trial and prompted the comment that rape victims were "raped twice," once by the perpetrator and again in court.

Starting in the 1970s, states began to enact "rape shield" statutes to limit abusive cross-examination. Roughly at the same time, changing attitudes toward extramarital sex made such tactics less useful than in the past and more likely to backfire by discrediting the defense. Typically, rape-shield statutes permit cross-examination about prior sexual involvement with the defendant, on the theory that such involvement can be relevant to a claim of consent, but they prohibit most cross-examination about prior sexual contact with others.

The latter prohibition is not iron-clad, because there are unusual circumstances in which reference to prior sexual conduct may be essential for the defendant to present his defense effectively. Under the Sixth Amendment, a witness's legitimate desire for privacy must yield to a defendant's right to confront and cross-examine opposing witnesses when the subject of the questioning is relevant and essential to a fair trial. Accordingly, most rape-shield statutes contain exceptions for such situations; those that do not have been held unconstitutional in specific settings or interpreted to allow exceptions as needed to preserve the defendant's constitutional rights.

These limitations have made rape-shield statutes more porous than reformers initially expected, but the statutes have nonetheless had a major impact on rape trials. Empirical studies report that victims are much better treated than in the past and that efforts to limit the admissibility of sexual history evidence are usually successful.

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