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.
Presumption of Sexual Guilt
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
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
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?
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.
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.
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.
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.
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.
Murphy is a Contributing Editor with the Center for Individual Freedom.
March 4, 2004]
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