Rape shield law
A rape shield law is a legal provision designed to protect the privacy of sexual assault victims by prohibiting the introduction of their sexual history or reputation as evidence in criminal trials. Originating in the 1970s, these laws emerged in response to the challenges victims faced in court, where their credibility could be undermined by irrelevant personal histories. The first such law was enacted in Michigan in 1974, and by the late 1990s, all U.S. states had adopted some form of rape shield law, alongside similar regulations in countries like Canada, Australia, and New Zealand.
These laws generally aim to encourage victims to come forward without fear of being judged based on their past. However, their application can vary significantly by state, with some allowing exceptions, particularly if a victim had a previous sexual relationship with the accused. While supporters argue that rape shield laws are crucial for protecting victims' rights, opponents raise concerns about the potential infringement on the accused's Sixth Amendment rights, which include the right to confront witnesses. This ongoing debate highlights the delicate balance between safeguarding victims and ensuring fair trials for the accused.
Rape shield law
A rape shield law is a law that prohibits a defense attorney from introducing a rape survivor’s sexual history or reputation as evidence during a criminal trial. Since the 1970s, states have enacted their own versions of rape shield laws, and the US federal government introduced a new rule into the Federal Rules of Evidence that held that evidence of a survivor’s prior sexual conduct is largely inadmissible in most cases of sexual assault. Many other countries have their own forms of rape shield laws, including England and Wales, Canada, Australia, and New Zealand.
History of Rape Shield Laws in the United States
Prior to the 1970s, survivors of rape who brought their cases to court had few protections under the law. Because rape is a crime that usually occurs in private without any witnesses, it was often up to the survivor and prosecution to prove that a crime actually took place and that the sexual relations between the survivor and the accused had not been consensual. Survivors usually had to prove that they had physically resisted their attackers to "the utmost" of their ability for their rapists to be successfully prosecuted. Such circumstances were often difficult to prove in court. The nature of the crime usually provided prosecutors with little, if any, supporting evidence. Cases often depended on one factor—the survivor’s word against the accused individual's word.
In the past, it was also common for defense attorneys to use survivors’ sexual histories against them during trial. This defense strategy was designed to influence the jury or judge’s opinion of the survivor’s character and discredit their believability. Defense attorneys knew that bringing up a survivor's history of promiscuous sexual behavior would raise questions about their morality and that the jury or judge would be more likely to believe that the sex between the two parties had been consensual. Such tactics discouraged many rape survivors from coming forward and pursuing legal action against their attackers.
While it was easier to prosecute cases of rape in which the survivor and the accused had no prior contact, rape cases in which the two had a prior sexual relationship were especially difficult to argue. Again, the problem being that the defense could bring up the survivor's sexual history with the accused and claim that both parties had consented to sex.
As more people began focusing on survivors’ rights in the 1970s, states began enacting the first rape shield laws in the United States. The first state to establish such a law was Michigan. In 1974, Michigan created a law that expressly forbid using the survivor's sexual history as evidence during a trial. Other states soon followed, and the US federal government added a rule to the Federal Rules of Evidence in 1978 that prohibited the use of a survivor’s prior sexual behavior or predisposition as evidence in most federal cases of sexual misconduct. By the end of the 1990s, every state in the union had some form of rape shield law.
Rape shield laws continually evolve in the US and abroad. The US Rape Shield Enhancement Act of 2024 proposed amendments to the Federal Rules of Evidence that would further limit the admissibility of survivors’ sexual histories in sexual assault cases. Several states, including Colorado and California, also extended rape shield law protections in 2024 to better address the unfair use of similarly re-traumatization evidence. In January 2025, a parliamentary report in France recommended revising the country’s rape laws to specify the concept of consent.
Controversy Concerning Rape Shield Laws
Although rape shield laws have become widely accepted in the twenty-first century, people on both sides of the issue have concerns regarding these laws. For example, many proponents do not believe that rape shield laws do enough to protect the rights of survivors. Rape shield laws do not prevent a survivor’s sexual history from being used by the defense in most civil cases, only in criminal cases. The amount of protection that these laws offer survivors also varies by state. In some states, exceptions to a rape shield law can be granted if a judge deems that evidence about a survivor’s sexual history is relevant to the case. Other exceptions can be made in many states if the survivor had a prior sexual relationship with the accused. In many cases, the survivor’s sexual history is viewed as relevant by judges, and defense attorneys use the past relationship to suggest that the sex was consensual. Those who support rape shield laws believe that they need to provide more protection to survivors of sexual assault and that they should be uniform across the states.
However, opponents of rape shield laws argue that these laws infringe on an accused individual’s Sixth Amendment rights, which include the right to know and confront the accuser in court. Based on this, many defense attorneys continue to argue that rape shield laws are unconstitutional. This argument was made in a high-profile case involving National Basketball Association (NBA) star Kobe Bryant in the early 2000s. Bryant had been accused of sexually assaulting a nineteen-year-old woman in Colorado in 2003. The basketball player’s attorneys tried to argue that the rape shield law was unconstitutional because it violated Bryant’s Sixth Amendment rights. However, the judge ruled to uphold the state’s rape shield law and prevented the defense from presenting the survivor’s sexual history as evidence. The case was eventually dismissed after the survivor refused to testify and filed a civil suit instead. Despite the outcome, the case was significant because of the judge’s ruling to uphold the law. In such cases, judges must weigh the survivor's rights against the accused individual’s rights. More often than not, the protection of the survivor is viewed as more important than any possible damage that could be done to the accused’s case by upholding the rape shield law.
Bibliography
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