Freedom Line

In framing shield laws to protect the accuser, legislatures continue to not so subtly chip away at the presumption of innocence by characterizing the accuser as a victim.

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The Presumption of Sexual Guilt

By Erin Murphy

The criminal justice system rarely faces closer scrutiny than when a professional athlete is on trial, which the sexual assault charges against Kobe Bryant have demonstrated once again in bringing the question over the constitutionality of rape shield laws into the national spotlight.

Bryant's attorneys hope to persuade a jury that any physical trauma to his accuser could be a product of at least one other sexual encounter she is alleged to have had within days of having sex with Bryant. Whether a jury would buy this argument may never be determined because such evidence is generally barred by state statute. Under Colorado's rape shield law, the prior sexual conduct of an accuser is presumed irrelevant unless it falls into one of two categories: 1) past or subsequent sexual acts with the defendant; or 2) evidence demonstrating the act was committed by someone other than the defendant. Bryant's attorneys hope that sex with other partners either immediately prior or subsequent to sex with Bryant is admissible under the second exception.

Most doubt Bryant will meet with much success, given that the state supreme court previously barred admission when a defendant attempted on a similar theory to introduce evidence of a sexual encounter within four days of the alleged rape. Whether Bryant succeeds in the Colorado courts or not, his attempts have brought to the forefront a question upon which the legal community has never reached consensus: under what circumstances should the sexual history of an accuser be admissible?

Rape shield laws are a product of another time and another society. Most were enacted in the 1970s, decades before chastity lost its charm and premarital sex its shock value. The vast majority of Americans — at the very least, the millions tuning in each week to watch the single women of "Friends" and "Sex and the City" sleep their way through Manhattan — no longer equate sex outside of marriage with loose moral fiber. Attitudes about women's sexual independence are not the only cultural change; the definition of rape itself has undergone significant transformation. Whereas the definition of rape used to be confined to a violent act by a stranger, it is now generally accepted that rape includes any nonconsensual sex, with or without violence, by a stranger, an acquaintance, a date, even a regular sexual partner or a spouse.

While the landscape has changed both to make accusers more credible and rape claims more legitimate, shield laws have not adapted to those changes. These laws arose from circumstances where the relevance of sexual history was much more dubious — strangers accused of rape arguing that women "asked for it" by wearing certain clothes or having any prior sexual relations. In today's claims of spousal and date rape, often based on nothing more than his word versus hers, it is not nearly so obvious that sexual history bears no relevance to consent. For example, shield laws have been used to bar evidence that an accuser regularly engaged in consensual violent sex even though evidence of violence was used to convict, or to bar a history of acting vindictively against former sexual partners when an allegation arose out of similar circumstances. While such evidence alone may not be conclusive proof of a defendant's innocence, that it bears no relevancy whatsoever is a blatant legal fiction.

Shield laws were passed to increase reporting and convictions of rape by protecting an accuser from invasions into her private sexual history. Thus, while some statutes state that sexual history is excluded because it is irrelevant, others maintain it must be excluded because the privacy rights of the accuser outweigh the rights of the accused. Given that neither state nor federal rules allow the admission of irrelevant evidence in any criminal procedure, rape shield laws are unnecessary if an accuser's sexual history really is irrelevant. Thus the only legitimate justification for these extra protections is to keep potentially relevant sexual history out of the courtroom when it could violate the accuser's privacy.

In framing shield laws to protect the accuser, legislatures continue to not so subtly chip away at the presumption of innocence by characterizing the accuser as a victim. Colorado's statute makes this abundantly clear by consistently calling the accuser "the victim," and even the federal rape shield law was passed under the title "Privacy Protection for Rape Victims Act." In other words, it is not just the substance, but the very language of shield laws that stacks the system against defendants.

Undoubtedly, the privacy of a rape victim is a valid and substantial concern, but our Constitution mandates trial protections for the accused, not the accuser, in order to protect the presumption of innocence. The admissibility of evidence must be dictated by its relevance to the allegations, not its impact on the alleged victim. As long as our society maintains that justice is not served by any presumptions of guilt, laws should not encourage those presumptions, no matter how heinous the alleged crime.

Erin Murphy is a Contributing Editor with the Center for Individual Freedom.

[Posted March 4, 2004]

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