Rape Shield Laws: Protecting Sex-Crime Victims

November 8, 2013

"Rape shield" laws are designed to protect the victims of sex crimes during criminal proceedings. With very limited exceptions, they prevent defendants from introducing evidence of victims' sexual behavior, history, or reputation.

An Evolution

In the past half century, the law in every state has evolved to prevent defendants in sex cases from smearing the reputations of alleged victims.

Traditionally, a defendant was allowed to present evidence of the victim's sexual activity to the jury. Defendants painted victims as immoral and unchaste. They mounted character attacks on the theory that the victim's sexual profile was relevant to the crime—if she was impure, how could she be trusted?

In the late 1970s into the1980s, states began to protect alleged victims of sex crimes. Lawmakers recognized that victims experienced humiliation and embarrassment when they reported rapes and other sex crimes. Ultimately, they had a strong disincentive to report the offenses they suffered.

Lawmakers also recognized that the character, morality, and sexual history of a victim are largely irrelevant to a sex crime trial. The rape shield laws they enacted essentially apply the usual rules of evidence: Evidence that isn't reasonably related to the charges and that amounts merely to character evidence won't come in at trial.

HOLDING UP THE SHIELD

Suppose Dave is on trial for the alleged rape of Vicky. His defense is that she consented to intercourse. Dave wants to introduce evidence of Vicky's sexual experiences with other men and her reputation for promiscuity. His theory is that these bits of evidence will help show that it was unlikely that Vicky would say "no" to him.

What Dave hopes to offer is classic character evidence that a rape shield law will prohibit. If he had tried to offer evidence of his past sexual experiences with Vicky, the court might—but might not—admit it. If he offered it to provide context for the events in question, not to assail Vicky's character, then he would have a better chance.

Challenges by Defendants

Defendants have challenged rape shield laws on a variety of grounds—they've argued that these evidentiary rules violate the right to confront one's accuser and the right against self-incrimination, and that they are too vague. They've also argued that the laws discriminate unfairly. Courts have overwhelmingly rejected these challenges.

Right to Confront Accuser

The Constitution guarantees a defendant the right to confront the victim, or accuser, at trial. Defendants have argued that rape shield laws abuse this right by hiding victims' previous sexual behavior. But, indicative of the nationwide approach, an Illinois court held that a defendant's right to confrontation doesn't include a right to present irrelevant evidence such as the victim's reputation and sexual acts with other people. (People v. Cornes, 80 Ill.App.3d 166 (1980).)

Right Against Self-Incrimination

Many rape shield laws allow defendants to present evidence of the victim's sexual behavior and reputation to the court prior to trial so that the judge may decide whether to admit it. A defendant in this situation must show the judge that the victim's past and reputation relate directly to the charges.

At the same time, the Fifth Amendment protects defendants from being compelled to incriminate themselves. Defendants have claimed that the rape-shield system of evidence disclosure—which requires them to reveal evidence in advance of trial and potentially admit to certain conduct—requires self-incrimination. But courts have had little patience for such challenges, nearly universally denying them. For instance, a court in California upheld a law requiring an out-of-court hearing to determine whether to admit character evidence relating to the victim. (People v. Blackburn, 56 Cal.App.3d 685 (1976).)

Vagueness

Defendants have also claimed that rape shield laws are so vague that there is no way to apply them fairly. In California, a court disposed of that argument by pointing out that the legislature laid out procedures to determine the admissibility of evidence of the victim's character. (Id.) Similarly, a Kansas court decided that the term "sexual conduct" in the relevant law was sufficiently precise for a common person to understand. (State v. Carmichael, 240 Kan. 149 (1986).)

Equal Protection

Defendants have also claimed that rape shield laws violate the 14th Amendment's Equal Protection Clause because they affect men more than women. But courts have reasoned that rape shield laws are similar to laws prohibiting rape itself, and no one would argue that those laws unfairly prejudice men.

Here to Stay

Rape shield laws have brought the rules related to sex crimes in line with the rules of evidence that apply to all other criminal trials. If a defendant can show that evidence of a victim's character, reputation, or sexual history is relevant to the charges, the court will probably allow it. For example, if the defendant claims that the alleged victim received the injuries in question during a sexual encounter with another man, evidence of that encounter might be admissible.

But getting past rape shield laws is tough because of their design—to prevent victims from experiencing public shame for having reported their ordeals.

Get Help

If you face charges for a sex crime or any other offense, consult an experienced criminal defense attorney immediately. That lawyer can advise you of the applicable law and protect your rights.

If you have been the victim of a sex crime, even if you have already reported it, there are many resources to help you deal with this ordeal. (When looking for help, remember to consider how private your computer, Internet, and phone use are. Consider whether there's anything you can and should do to prevent someone else from learning that you're doing research or seeking help. Some victims, for instance, might use the same computer or device as the abuser, or might have a phone plan that allows the abuser to see the calls they make and receive. Other kinds of technology, like home security cameras and GPS in phones and cars, can also allow for monitoring by the abuser.)​

For information, consider sites like Rape, Abuse & Incest National Network (RAINN), the U.S. Department of Justice's crimevictims.gov, and the National Sexual Violence Resource Center (NSVRC).

If you have already reported the crime, ask for help and information from the office prosecuting it; you can also seek the same from the law enforcement agency that is investigating the offense. Also consider consulting the website for the jurisdiction in which the crime occurred, such as your county's official site.