Rape Shield Laws

November 24, 2007

By: David K. Jaffe

The Cassandra Curse

Rape shield laws, present in 50 states and the District of Columbia, limit the use of a victim's prior sexual history as a means to undermine the credibility of the victim's testimony.[1] In the 1970s, states began to enact these laws due, in part, to pressure from feminist organizations, legislators and the legal community.[2] Following suit in 1978, Congress enacted Rule 412 of the Federal Rules of Evidence, which states that evidence offered to prove that an alleged victim engaged in other sexual behavior and evidence offered to prove any alleged victim's sexual predisposition is generally inadmissible.[3]

Common Law

At common law, evidence of a victim's past sexual behavior was always relevant and admissible into evidence in rape prosecutions.[4] This is because a victim's past sexual conduct could prove a history of unchaste behavior, which was also thought to purport dishonesty.[5] In the eighteenth century,[6] or even the late nineteenth century,[7] women were considered chattel. In today's society, women have achieved more equality in our legal system.[8]

Prior False Allegations of Rape

Ever since Potiphar of Biblical times, down through the ages, the fear of false accusations of rape have lurked in men's hearts and mind.[9] According to some commentators, "the notion that women will lie about rape or sexual assault for any number of reasons is firmly entrenched in societal attitudes toward women and rape."[10] Aesop's message that a pattern of lying can lead, justifiably, to disbelief of subsequent statements, permeates the law.[11]

Cassandra Curse

Female credibility has been an issue for women all through the ages. Greek mythology provides an apt analogy. The god Apollo was smitten by Cassandra, daughter of Priam. Apollo bestowed the gift of prophecy on his beloved Cassandra. But when Cassandra scorned the god's love for her, Apollo punished her with the curse that her prophetic powers would not be believed.[12] Although some may dismiss Cassandra as mythic, her plight profoundly resonates with women today. In the trenchant analysis of a legal commentator: "As ancient Cassandra would attest, the female credibility impediment is neither new nor defunct."[13]

State Statutes and Rules of Evidence

Rape shield laws are generally regarded as rules of relevance, although some courts view them as rules of privilege.[14] Thus, in sexual assault trials, evidence of the complainant's prior sexual conduct will neither be admissible, nor can the complainant be cross-examined as to her sexual past.[15] Such information would be unduly prejudicial before a jury.[16]

Balancing Competing Interests

These state Rape Shield Laws raise multiple constitutional issues. Rape shield laws potentially preclude defendants charged with rape from exercising their Sixth Amendment right to confront the complainant and other adverse witnesses.[17] This lack of confrontation, in turn, renders questionable the effective preservation of the defendant's right to a fair and impartial trial under the due process clause of the fourteenth amendment

The defendant enjoys the Sixth Amendment right to confront witnesses and the right to due process of law as included in the fourteenth amendment. The complainant, however, has the directly competing right to privacy through the Fourteenth Amendment. These constitutional privileges create an inherent tension between the two parties to an adjudication.

Connecticut's Rape Shield Law

In 1982, Connecticut passed its rape shield law.[18] "From its inception, Connecticut courts have properly interpreted this statute."[19] A balancing of interests is provided which addresses constitutional issues, while detailing the situations in which the complainants' past sexual conduct is admissible.[20]. "The Connecticut General Assembly's formal recognition of these competing concerns has aided the Connecticut judiciary in the application of the rape shield statute. Though Connecticut courts are still required to determine what evidence is critical to the maintenance of the defendant's constitutional rights, the specificity of the statute, combined with the constitutional rights provision of subsection (4), offers a large degree of symmetry. "[21

Connecticut's Rape Shield Statute limits the admissibility of a victim's sexual conduct to four specific issues, all of which are subject to a balancing test that the probative value of the evidence must outweigh its prejudicial effect on the victim.[22] First, if the accused claims consent, he or she may offer proof of sexual conduct by the victim with the accused, but not with others. Second, the accused may offer proof of the victim's sexual conduct with others on the issue of the source of the semen, or disease, pregnancy, or injury claimed by the victim. Third, if the victim has testified on direct examination as to his or her sexual behavior, the accused may rebut with similar evidence. Fourth, sexual conduct of the victim is admissible if exclusion would violate the accused's constitutional rights. When evidence of the victim's sexual conduct is admissible, the statute limits proof to evidence of "sexual conduct." This phraseology permits only specific instances of conduct and prohibits proof of reputation or personal opinion of the victim's sexual conduct. State v. Jones, 8 Conn. App. 44, 48 (1986).

Notes:

1. See Allison Menkes, Criminal Law Chapter: Rape and Sexual Assault, 7 Geo. J. Gender & L. 847 n5 (2006), for a complete listing of the state statutes.

2. Id.

3. Fed. R. Evid. 412. The 1994 Crime Bill modified the Federal Rule of Evidence 412. The major changes include: (1) extending coverage to civil cases; and (2) changing the Rule 403 balancing test governing admissibility to incorporate consideration of the victim and to shift to the proponent the burden of demonstrating the probative value of the proposed evidence.

4. See Sakthi Murthy, Rejecting Unreasonable Sexual Expectations: Limits on Using a Rape Victim's Sexual History to Show the Defendant's Mistaken Belief in Consent, 79 Cal. L. Rev. 541 (1991).

5. See Pamela J. Fisher, State v. Alvey: Iowa's Victimization of Defendant's through the Overextension of Iowa's Rape Shield law, 76 Iowa L. Rev. 835, 837 (1991).

6. William Blackstone was a prominent scholar in the eighteenth century. See 4 William Blackstone, Commentaries 210-216.

7. John Henry Wigmore was writing his treatises on evidence in the late nineteenth century. See 1A John Henry Wigmore, Evidence in Trials at Common Law 924(a). According to Wigmore, cross-examination is our greatest invention for truth seeking. 2 John H. Wigmore, A Treatise on the System of Evidence in Trials at Common Law 1367, at 1697 (1904).

8. See Tracy A. Berry, Prior Untruthful Allegations under Wisconsin's Rape Shield Law: Will those Words Come Back to Haunt You? 2002 Wis. L. Rev. 1237, 1238 & n.4.

9. Potiphar was an Egyptian whose wife was attracted to the Israelite, Joseph. When Joseph spurned Potiphar's wiles, Potiphar cried raped. Joseph was then shackled and put in prison.

10. See Denise R. Johnson, Prior False Allegations of Rape: Falsus in Uno, Falsus in Omnibus? 7 Yale J.L. & Feminism 243 (1995) ("Whether the motive to lie finds voice in a woman scorned, in the sexually repressed and fantasizing woman who desire to be raped, or in the unchaste woman who seeks to mask her own promiscuity by crying rape, these myths have allowed the focus in rape cases to be placed on the victim's lack of innocence rather than on the guilt of the accused.")

11. Aesop's Fable, "The Boy Who Cried Wolf," available at Story Arts Online,

http://www.storyarts.org/library/aesops/story/boy.html

12. For an excellent primer on Greek Mythology, see Edith Hamilton, Mythology (1969).

13. See Amy D. Ronner, The Cassandra Curse: The Stereotype of the Female Liar Resurfaces in Jones v. Clinton, 31 U.C. Davis L. Rev. 123 (1997)

14. See Frank Tuerkheimer, A Reassessment and Redefinition of Rape Shield Laws, 50 Ohio St. L.J. 1245, 1254-58 (1989). Most courts regard rape shield laws as rules of relevance, but some courts consider them to function as privileges. Id.

15. See Tracy A. Berry, Prior Untruthful Allegations under Wisconsin's Rape Shield Law: Will those Words Come Back to Haunt You? 2002 Wis. L. Rev. 1237

16. See, e.g., Conn. Code of Evidence§ 4-11. Section 4-11 quotes verbatim Conn. Gen. Stat. § 54-86f, which covers the admissibility of evidence of a victim's sexual conduct in prosecutions for sexual assault and includes a procedural framework for admitting such evidence. Although Section 4-11, by its terms, is limited to criminal prosecutions for certain enumerated sexual assault offenses, the Connecticut Supreme Court has applied the exclusionary principles of § 54-86f to prosecutions for risk of injury to a child brought under Conn. Gen. Stat. § 53-21, at least when the prosecution also presents sexual assault charges under one or more of the statutes enumerated in Conn. Gen. Stat. § 54-86f. See State v. Kulmac, 230 Conn. 43, 54 (1994). The court reasoned that the policies underlying the rape shield statute were equally applicable when allegations of sexual assault and abuse form the basis of both the risk of injury and sexual assault charges. See, id. Although the Code takes no position on the issue, Section 4-11 does not preclude application of the rape shield statute's general precepts, as a matter of common law, to other situations in which the policies underlying the rape shield statute apply.

17. U.S. Const. amend. VI provides, in part: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him ..." The Sixth Amendment confrontation clause was held applicable to the states through the due process clause of the fourteenth amendment in Pointer v. Texas, 380 U.S. 400 (1965). U.S. Const. amend. XIV provides, in part: "[N]or shall any State deprive any person of life, liberty, or property, without due process of law ...."

18. See Conn. Gen. Stat. § 54-86f.

19. See Andrew Z. Soshnick, The Rape Shield Paradox: Complainant Protection Amidst Oscillating Trends of State Judicial Interpretation, 78 J. Crim. L. & Criminology 644, 686 (1987)

20. Id.

21. Id.

22. See also Tait & La Plante, Connecticut Evidence § 4.29 Rape Shield Statute.

For Further Reading on Rape Shield Laws

Allison Menkes, Criminal Law Chapter: Rape and Sexual Assault, 7 Geo. J. Gender & L. 847 (2006)

Amy D. Ronner, The Cassandra Curse: The Stereotype of the Female Liar Resurfaces in Jones v. Clinton, 31 U.C. Davis L. Rev. 123 (1997)

Andrew J. Wistrich, Chris Guthrie & Jeffrey J. Rachlinski, Can Judges Ignore Inadmissible Information? The Difficulty of Deliberately Disregarding, 153 U. Pa. L. Rev. 1251 (2005)

Andrew Z. Soshnick, The Rape Shield Paradox: Complainant Protection Amidst Oscillating Trends of State Judicial Interpretation, 78 J. Crim. L. & Criminology 644 (1987)

Becky L. Jacobs, PMS HAHAcronym: Perpetuating Male Superiority, 14 Tex. J. Women & L. 1 (2004)

Christopher Bopst, Rape Shield Laws and Prior False Accusations of Rape: The Need for Meaningful Legislative Reform, 24 J. Legis. 125 (1998)

Clifford S. Fishman, Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant's Past Sexual Behavior, 44 Cath. U.L. Rev. 711 (1995)

Cristina C. Tilley, A Feminist Repudiation of the Rape Shield Laws, 51 Drake L. Rev. 45 (2002)

Daniel Lowery, The Sixth Amendment, The Preclusionary Sanction, and Rape Shield Laws: Michigan v. Lucas, 61 U. Cin. L. Rev. 297 (1992)

David E. Fialkow, The Media's First Amendment Rights and the Rape Victim's Right to Privacy: Where Does one Right End and the Other Begin? 39 Suffolk U.L. Rev. 745 (2006)

Denise R. Johnson, Prior False Allegations of Rape: Falsus in Uno, Falsus in Omnibus? 7 Yale J.L. & Feminism 243 (1995)

Edward Greer, The Truth Behind Legal Dominance Feminism's "Two Percent False Rape Claim" Figure, 33 Loy. L.A.L. Rev. 947 (2000)

Frank Tuerkheimer, A Reassessment and Redefinition of Rape Shield Laws, 50 Ohio St. L.J. 1245 (1989)

Haviva A. Graeber, Striking the Right Balance in New Mexico's Rape Shield Law: State v. Johnson, 28 N.M.L. Rev. 611 (1998)

James B. Johnston, How the Confrontation Clause Defeated the Rape Shield Statute: Acquaintance Rape, the Consent Defense, and the New Jersey Supreme Court's Ruling in State v. Garron, 14 S. Cal. Rev. L. & Women's Stud. 197 (2005)

Jeffrey Matrullo, People v. Bryant and Prior Restraint: The Unsettling of a Settled Area of Law, 4 Conn. Pub. Int. L.J. 347 (2005)

Jennifer K. Bukowsky, The Girl Who Cried Wolf: Missouri's New Approach to Evidence of Prior False Allegations, 70 Mo. L. Rev. 813 (2005)

Josh Maggard, Courting Disaster: Re-Evaluating Rape Shields in Light of People v. Bryant, 66 Ohio St. L.J. 1341 (2005)

Jules Epstein, True Lies: The Constitutional and Evidentiary Bases for Admitting Prior False Accusation Evidence in Sexual Assault Prosecutions, 24 Quinnipiac L. Rev. 609 (2006)

Kerry C. O'Dell, Criminal Law Chapter: Evidence in Sexual Assault, 7 Geo. J. Gender & L. 819 (2006)

Kristine C. Karnezis, Modern Status of Admissibility, in Forcible Rape Prosecution, of Complainant's Prior Sexual Acts, 94 A.L.R. 3d 257

Marah deMeule, Privacy Protections for the Rape Complainant: Half a Fig Leaf, 80 N. Dak. L. Rev. 145 (2004)

Michelle J. Anderson, All-American Rape, 79 St. John's L. Rev. 625 (2005)

Michelle J. Anderson, From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law, 70 Geo Wash. L. Rev. 51 (2002)

Nancy M. King, Impeachment or Cross-Examination of Prosecuting Witness in Sexual Offense Trial by Showing that Similar Charges were Made Against Other Persons, 71 A.L.R. 4th 469

Regan K. LaTesta, Rape Shield Statutes and the Admissibility of Evidence Tending to Show a Motive to Fabricate, 46 Clev. St. L. Rev. 489 (1998)

Richard I. Haddad, Shield or Sieve? People v. Bryant and the Rape Shield Law in High-Profile Cases, 39 Colum. J.L. & Soc. Probs. 185 (2005)

Shawn J. Wallach, Rape Shield Laws: Protecting the Victim at the Expense of the Defendant's Constitutional Rights, 13 N.Y.L. Sch. J. Hum. Rts. 485 (1997)

Sherry F. Colb, "Whodunit" versus "What was Done": When to Admit Character Evidence in Criminal Cases, 79 N.C.L. Rev. 939 (2001)

Tom Lininger, Bearing the Cross, 74 Fordham L. Rev. 1353 (2005)

Tracey A. Berry, Prior Untruthful Allegations under Wisconsin's Rape Shield Law: Will those Words Come Back to Haunt You? 2002 Wis. L. Rev. 1237