Rape Sheild Law Term paper
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In the 1970's, under pressure from feminist activists, lawyers, and legislators, most states changed their rape laws to ease the emotional burden of rape victims who testified in court. They had found that, for many women, going through the legal process was as painful as the rape itself. No longer did a woman have to show up in the court with broken bones and missing teeth to be taken seriously. Rape shield laws prohibited lawyers from delving into the victim's sexual history. As a result, rape victims started coming forward, and not only those attacked by strangers, but those assaulted by coworkers, classmates, family members, and acquaintances.
Victims often do not report a rape, largely because they fear overbearing hostile police, and fear of a trial ensuing vicious attacks on their character. Although false reports are no common than any other crime, justice system officials are highly skeptical of women who claim to have been raped by acquaintances. If the rape victim's conduct prior to the crime violated traditional sex-role norms, police commonly disbelieve her report or blame her for her rape. Many officials deny justice to women who have engaged in non-marital sex, or other "improper" behaviors, for example, such as drinking heavily, hitchhiking, or wearing sexy clothing (Byrden, Lengnick 5).
There are only two exceptions to the rape shield law which is that evidence of the victim's past sexual conduct with the defendant can be admitted, but only if it is material to a fact at issue (generally consent). Another exception is when its inflammatory or prejudicial nature does not outweigh its probative value, meaning that what the defense is trying to prove does not put prejudices on the jury against the alleged victim. Finally, evidence of prior sexual activity with persons other than the defendant can be admissible only to show the source of pregnancy, semen, or disease (4).
Most proposals to reform rape shield laws, have been designed to improve the prosecution's chances in acquaintance rape cases, and to lessen the victim's ordeal by restricting inquiries into her relationships with other men. In the prosecution's point of view, acquaintance rape cases are most difficult to win if the woman either had engaged in consensual sex with the defendant at some time before the alleged rape, or behaved in ways that violated traditional norms of female propriety such as those mentioned above (5).
What is the origin to this prejudice against "bad victims" who are raped by acquaintances? One theory is that male ideology pervades the criminal justice system. According to this view the "respectable" males who dominate the system such as police, prosecutors, jurors, and judges, are sincerely horrified by stranger rapes, and rapes involving guns or knives (5). They also hate rapes that occur in "inappropriate" relationships such as incest. In such cases, the rape scenario does not resemble ordinary, socially acceptable sexual relations. On the other hand, respectable men empathize with men who are accused of having raped a woman on a date (6). The "respectable" men tend to identify with the male in a dating situation, and he can easily imagine feeling accused of rape, or irresistibly provoked by a "loose woman" (6). Accordingly, he wishes to ensure that "normal' aggressive male sexuality is protected by the law.
Many contend that men, irrationally fearing false rape accusations, are deeply suspicious of women who claim to have been raped by an acquaintance. Men and women who have adopted this male ideology often express this suspicion by blaming the female victim of the rape rather than the male perpetrator. One example is that some used to claim that it is impossible to rape a woman against her will (8). Another rape myth is that all women ant to be raped and those who decline men's sexual advances are only being coy, consciously or not, they secretly crave sex (8). More widespread is the idea that rapes are caused by a sudden uncontrollable explosion of male desire, ignited by the behavior of a provocatively sexy woman (9). One thing has been clear, which is that many rape victims were subjected to institutionalized sexism, which began with their treatment by the police, continued through the legal system, much influenced by notions of victim precipitation, and ended with the acquittal of many rapists.
During the past two decades, many rape scholars have been feeling nothing but sorrow for the exceedingly high rate of attrition in rape cases, especially acquaintance cases. According to one authority, "the likelihood of a rape complaint actually ending in conviction is generally estimated at 25%" (15). Recent crime-victim survey data suggest that each year an estimated 500,000 women are victims of some form of rape or sexual assault (22). Yet in 1994, only 102,096 rapes were reported to authorities, and ultimately there were only an estimated 36,610 arrests for forcible rape 922). Data from several jurisdictions, the Senate Judiciary Committee reported that 98% of rape victims "never see their attacker caught, tried, and imprisoned" (24).
One goal of the rape shield law was to reduce the rape victim's ordeal in the justice system and to increase reporting rates. Many scholars believe that the proportion of victims who report rapes has risen in recent decades. For example, one study concludes that the national proportion of rape victims who reported the crime rose by 105 between 1980 and 1990, showing an increase but one greater than for non-sexual assault and robbery showing a 12% decrease (27).
The single most common reason for failure to press charges was to avoid the ordeal of the courtroom, where the victim anticipated that she would be blamed for the crime and embarrassing questions would be raised about her sexual habitation, for example, an abortion, use of birth control, and that she slept around (31). Police who are extremely negative also affect the victim's decisions. A study in Denver found that 38% of rape accusers withdrew their charges soon after filing them (31). Among reasons given was police resistance to prosecuting the case. It was investigated to see which variables were correlated with the victim's willingness to prosecute. It was concluded that the perpetrator's use of a weapon and the presence of a witness to the rape were important factors in both acquaintance and stranger rape cases (32). To explain this finding, it was said that detectives influence the woman's decision to prosecute. If no weapon was used, and no witnesses exist, the police may feel that the prosecution would be futile (32). In order to decrease the number of unsolved crimes on his record, a detective may attempt to dissuade the woman from pressing charges (32).
In Michigan, a study of the impact of comprehensive rape law reforms found that the rate of unfoundings remained stable (less than 10%) after passage of the reforms (34). Between 1973 and 1977, arrests for forcible rape rose by 61%, compared with 16% increases for both murder and aggravated assault and with robbery, which showed a decline of 8% (34). Although the increased number of arrests was a predictable result of increased reporting coupled with a stable unfounding rate, it is concluded that the rising arrest rate was also influenced by Michigan's strong rape law reforms
Promiscuity is perhaps the most effective charge that a rape defendant can level against his accuser. Prior to the rape shield laws, courts generally regarded the woman's 'character for chastity', her propensity to engage in non-marital discourse, as relevant to whether she had consented (67). Modern rape scholars will argue that the sexual history evidence is irrelevant and prejudicial. They maintain that the complainant's sexual history has little or no tendency to show consent, because non-marital sex has become common and consent to sex on one occasion, with one man, is not evidence of consent on another occasion or with another man (67). Susan Estrich stated she would exclude evidence of the woman's past sexual encounters with other men because "most women, like most men, have had past sexual encounters and so unless the pattern is indeed peculiarly close, they don't prove a thing" (67).
One justification for excluding past sexual evidence in a rape case is the argument that the probative value of the evidence is outweighed by the danger that it will prejudice the jury. A woman's promiscuity enhances the plausibility of the defendant's tale of seduction, but it also, much less obviously, it enhances the plausibility of her tale of rape. The woman's failure to accuse any of her prior lovers of rape tends to show that she does not make false rape accusations: "If the victim has had twenty instances of prior sexual conduct with rock stars, without claiming rape, in the absence of other evidence of motivation the most reasonable inference is that she claimed rape this time because she was raped" (69).
More important, sexual permissiveness is associated with rape victimization. The best predictor of one whether one will be a rape victim, according to research by Koss and Dinero, is a composite model based on a history of child sexual abuse, liberal sexual attitudes, higher than average alcohol use, and above average sexual activity (69). In other words, the women who are most likely to consent are also the women who are most likely to be raped when they do not consent.
Data was collected for all cases of forcible rape listed by the Philadelphia police in 1958 and 1960. It was found that, of 640 women who reported rapes to the police, 19% had an arrest...
Byrden, David P., Lengnick, Sonja. "The Journal of Criminal Law & Criminology".Vol. 87. Issue 4, Summer97.
Gilbeaut, John. "Shield a Prosecution Sword". The New York Times. Vol.33. Issue 3.
January 24, 2000, 32.
Pennie, Mitchell. "Rape Law and Legislation". Herizons., Vol.13. Issue 1. Spring99,
12.
Rohde, David. "Call for New Sex-Abuse Trial Said to Harm Rape Shield Law". The N New York Times. Vol.149. Issue 51743. December 23, 1999
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