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Rape Shield Laws: Can They Be Fair?

Introduced in the 1970s, SHIELD LAWS sought to revolutionize rape trials. By prohibiting the introduction of a rape victim's reputation or sexual history at trial, lawmakers removed one of the age-old stigmas that had prevented the successful prosecution of rapists and had kept women from bringing cases to court. Originally, the laws met with widespread acceptance. Two decades after their adoption by most states and the federal government, however, they have given rise to a debate in which neither side is satisfied with them. Advocates say they have not worked as well as desired. Opponents argue that their effect has been to deny defendants a fair trial. The legal future of these revolutionary laws hinges on a difficult question: how can courts protect victims without curtailing the rights of defendants?

The origin of shield laws is a response to the historical prosecution of rape. Most accusations of rape assert that the victim did not give sexual consent. At COMMON LAW and in the present, the vast majority of rape cases have been tried in state courts before a jury. Traditionally, convictions have been notoriously hard to win. There is usually no evidence on the consent question other than the claims of the parties, making it difficult to prove lack of consent "beyond a reasonable doubt" as required in a criminal case. Hence, at trial, credibility is everything: if the accuser is not believable, the defendant is likely to be acquitted.

Defense attorneys typically challenge the accuser's credibility. For centuries, there was one effective path to such an end: to present evidence of the victim's past sexual behavior to undermine the present allegation. At common law, the victim's past sexual behavior was always considered relevant and admissible at trial. In this way, the law embodied social and moral values that put a high premium on a woman's sexuality. Conventional views of chastity regarded the sexually active woman as being promiscuous, and, in turn, promiscuity was thought to connote dishonesty. To cast doubt on the accuser's word and to show the likelihood of her having consented to sex with the defendant, defense attorneys commonly pursued evidence about her sexual life. If she had sex with men, or so the underlying belief went, how could she have been raped?

To combat these antiquated notions, rape shield laws arose through two significant developments. The sexual revolution of the 1960s dramatically changed social values regarding premarital sexual activity, and feminist legal theory became highly influential a decade later. Feminist critics attacked the premises on which the common-law origins of rape defenses were based. Their argument posed a question that only a generation earlier would have been widely dismissed: why should a woman's sexual history matter at all in relation to her claim of rape? Not only was such evidence irrelevant, they asserted, but harmful. Its use in court discouraged a woman from bringing a charge of rape because, in effect, she would be put on trial. Fearing a public assault on her reputation, a victim had a strong incentive not to report a rape. And when women were willing to undergo a barrage of intrusive questions, they often saw their claims mocked and their violators allowed to go free.

But for political success, passage of the laws required political support. Proponents won this support from conservative lawmakers. Although not generally known for embracing either the sexual revolution or feminist legal theory, these lawmakers backed the laws in state legislatures because they represented a solid law-and-order position. The idea that criminals sometimes improperly escape prosecution through the legal maneuvering of defense attorneys, and that the law should close such loopholes, had become a centerpiece of the conservative legal reform agenda by the 1970s. With this backing, rape shield laws were easily adopted. By the 1990s, all but two states had them.

By the late 1980s, however, some proponents were troubled. Shield laws had not lived up to expectations. Merely providing protections to victims had not been enough to change longstanding social and legal habits. In 1987 the NATIONAL ORGANIZATION FOR WOMEN and twenty-five other groups reported that gender bias against women litigants was still pervasive in courtrooms. As a result, women's testimony was accorded less credibility by judges and attorneys. Also, defense attorneys continued to introduce evidence that the shield laws were designed to bar. They could succeed if the evidence was introduced creatively, chiefly because state laws left judges wide discretion and unclear direction on what to admit as evidence. While seeking to tighten the admission of evidence in general, some shield law proponents wanted the laws strengthened to exclude even more kinds of evidence, such as the type of clothing a victim was wearing at the time of an assault.

In addition to such obstacles, various exceptions weakened rape shield laws. In particular, they provided little or no protection if the victim knew her assailant. Most state statutes allowed the admission of evidence about a past sexual relationship between the accuser and the defendant, and therefore defense attorneys often attempted to persuade juries that there had been such a relationship. Behavior by a woman that was even slightly indicative of a past sexual relationship with her assailant would work against her at trial.

By the 1990s a backlash against the laws developed. Defense attorneys, law professors, and civil liberties activists maintained that the laws were unfair to criminal defendants. They had two main arguments: restrictions on the admission of evidence undermined the defense attorney's goal of providing the best defense, and more significantly, such restrictions deprived the defendant of his SIXTH AMENDMENT right to a full defense, including confronting his accuser and presenting witnesses in his favor. Many opponents of shield laws acknowledged that women face traditional obstacles in rape prosecutions but saw the laws as a poor remedy if they denied defendants DUE PROCESS and sent the innocent to jail.

Among leading opponents of shield laws was ALAN M. DERSHOWITZ, the celebrated Harvard law professor and criminal appellate lawyer. Dershowitz unsuccessfully appealed the 1991 rape conviction of former boxing champion Mike Tyson to the U.S. Supreme Court, which refused to hear the case. Dershowitz argued that the trial court had unconstitutionally barred admission of evidence that would have acquitted Tyson: allegations that his accuser, a nineteen-year-old woman, had previously falsely accused another man of rape to avoid angering her father about her sexual activity. Because such evidence related to the victim's past sexual history, it was ruled inadmissible. In the view of Dershowitz and other opponents, such evidence should be allowed because it can reveal an accuser's motive to lie about consensual sex with a defendant. Frustrating these critics is the fact that appellate courts have consistently upheld shield laws, despite finding that some trial courts have applied the laws unconstitutionally.

From early enthusiasm to increasing skepticism, rape shield laws have endured a difficult quarter century since their passage. Their intention was to remove barriers that prevented women from reporting rape and winning convictions. Both proponents and opponents believe reform is needed, yet they disagree on what form it should take. Proponents want to strengthen shield laws to increase protections for women. But opponents counter that the laws are already strongly biased against defendants, depriving them of fundamental liberties.

Additional topics

Law Library - American Law and Legal InformationFree Legal Encyclopedia: Purge to Recovered Assets Incentivization Fund (RAIF)Rape - New Approach To Treating Rape Victims, Rape Shield Laws: Can They Be Fair?, Further Readings