In a rape case, can a defendant bring up his accuser's sexual history?

In most, but not all rape cases, the defendant cannot introduce evidence of the victim's sexual history in an attempt to disprove the prosecution's case.

Gone are the days when a rape defendant could point to his victim and say, “She’s a loose woman and everyone knows it,” and get away with rape. For the  most part  those days are gone, thanks largely to the institution of “rape shield laws.”

What is a “Rape Shield Law?”

A rape shield law  limits the introduction of evidence by a defendant charged with rape. The evidence not allowed in concerns the victim’s past sexual conduct. For example, defendants typically can't introduce evidence of the victims' prior consensual sexual relationships. Most states and the federal government have such laws.

State Rape Shield Laws

Many states have rape shield laws. In general, such 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 to the stand the victim's ex-boyfriend than introducing evidence that the defendant himself had been her boyfriend. The rationale for the different treatment of the evidence is that a victim's sexual conduct with third parties has no relevance to issues raised in the alleged rape, while evidence of a victim's conduct with the defendant may go to consent during the alleged rape under certain circumstances. These laws differ from state to state.

Laws limiting evidence of the victim’s reputation

Some states bar evidence about a victim’s sexual reputation. For example, Arizona’s Criminal Code includes a statute entitled, “Evidence Relating to Victim’s Chastity.” This statute bars any evidence relating to a rape or sexual assault victim’s reputation for “chastity.” (Ariz. Rev. Stat. Ann. § 13-1421.) Arizona, like many states with these types of shield laws, allows some inquiry into specific instances of sexual conduct by the victim if the conduct has bearing on the issues raised in the rape case. For example, a defendant may be allowed to introduce evidence that the victim had previously consented to bondage during a consensual sexual encounter to show that when the defendant tied her up, it was not to force her into sex but in the context of consensual sexual activity.

Laws limiting evidence of specific sexual conduct by the victim

When a rape defendant argues that some particular instance of sexual conduct by the victim is relevant to the rape charge, a court may allow the evidence to be introduced. For example, evidence of a consensual sexual encounter between the defendant and the victim after the alleged rape may be allowed into evidence because it may cast doubt upon the victim’s allegation that the alleged rape incident was nonconsensual. Another example of possibly admissible evidence of a specific encounter arises when a defendant offers evidence that a victim claiming pregnancy or sexually transmitted disease resulting from the alleged rape actually became pregnant or infected via a sexual encounter with another individual.

Laws requiring special showing of proof

Some states provide less of a “shield” or protection from disclosure of a rape victim’s prior sexual conduct if the conduct is shown to be particularly relevant to the rape case and is not overly harmful to the victim. In several states, such as California, a defendant cannot simply offer such evidence in court and in front of the jury, but must make a special motion to the judge alone, stating that the defendant has an “offer of proof” to make to the court. Such a motion must be supported by a sealed affidavit showing the relevance of the evidence. The court will then consider the motion and the sealed affidavit and rule on the offer of proof. If the court finds the offer of proof sufficient, it will order a closed hearing (out of the presence of the jury and public) in which the victim will be called to testify on the prior sexual conduct. Only after this hearing will the court decide if the victim must testify about his/her 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 issues in the case at hand,  and
  • the relevance of the evidence of the victim’s prior sexual conduct outweighs its prejudicial effect.

Federal Law

The Violence Against Women Act (“VAWA”) includes a  federal rape shield law (http://www.whitehouse.gov/sites/default/files/docs/vawa_factsheet.pdf)  prohibiting rape defendants in federal cases from using a rape victim’s sexual past against her in court. While most rape cases are prosecuted under state law, the federal rape shield law may be invoked in rape cases arising on Native American tribal lands. Unfortunately, the Uniform Code of Military Justice has not incorporated the federal rape shield law and harsh questioning of rape victims in military courts is a common tactic, illuminating the pressing need for such shield laws.

Check Your State Law

Rape shield laws vary a great deal from state to state. Talk to an experienced criminal lawyer in your area for more information about whether your state has such a law and, if so, what it provides.

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