RESEARCH PAPER

Rape Shield laws play an instrumental role in the American society. Before the laws were instituted, victims of rape were required to prove in a court of justice that they were indeed victims and not willing participants to the occurrence. It was thus easy for a defendant in a rape case to prove that his accuser was a willing participant. All that a defense team had to do in such a case to show the plaintiff's consent of the occurrence was to produce evidence regarding the victim’s sexual predisposition and sexual behavior before the incident took place. The defendant would then embark on a strategy that proves that the alleged victim asked for it or consented to it. However, the defense tactic that was initially permissible by the law to victimize victims for the second time. The defense tactic added to the emotional torture that the victim has suffered during the rape ordeal, by publicly presenting her in a courtroom where members of the public would scrutinize her, whereas, for obvious reasons, it would have been best for the victim's identity to remain anonymous. Therefore, instead of coming forward to report their aggressors and let justice be served, they choose not to report the incidence in order to stay out of the public eye. Given the detrimental experiences that rape victims went through before the ratification of the laws, this paper aims at proving that the Rape Shield laws play a significant role in the criminal justice system.

The reason that prompts me to write on this topic is that I had never heard of the rape shield laws until recently. I also hold a position in the United States Army as a Sexual Harassment Assault and Prevention Response Coordinator. In the position, I work with rape and sexual assault victims. In addition, my interest in the topic is prompted by the fact that rape is prevalent in today's society and that most of the time we as the society tend to blame the victim for being raped. I strongly feel that nobody’s past should hold him or her accountable for another person’s actions.

Rape Shield laws are policies meant to protect the victims of sexual violence such as rape during court proceedings. They have very limited exceptions in allowing a defendant to introduce evidence of the victim's past sexual behavior, history, and reputation as their defense strategy. The laws also prohibit the publication of the alleged rape victim's identity. The purpose of the laws is to protect the victim from emotional distress that emanates from being cross-examined on their past sexual behavior on the witness stand. Previously, courts have ruled that a victim’s sexual history had little relevance to defense teams and in fact, it amplifies the victim's humiliation[footnoteRef:1]. In essence, rape shield laws prevent the aggressor from discrediting the victim using the clothing won, behavior, attitude of the victim before the incident as well as the victim’s sexual past. [1: Anderson J. Michelle,  From Chastity Requirement To Sexuality License: Sexual Consent and a New Rape Shield Law(2013)]

Rape shield laws are necessary for the protection of a victim’s identity from public scrutiny. One of the biggest fears that prevent victims from reporting sexual assault to relevant authorities is that their identities would be publicly revealed which will expose them to stigmatization, which contributes to constant emotional torture. Rape shield laws require that the victim’s identity should be protected before, during and after court proceedings. The stigma inflicted upon rape victims after the ordeal makes them feel as if they are re-experiencing the incident. Rape stigma is so ingrained in the American culture that people rarely notice it in their continuous humiliation of rape victims in their conversations.

Victims of rape occasionally report that people are oblivious to their actions towards them. For instance, when they engage with the person and divulge information about their rape incident, the audience's reactions often place the victims in utter discomfort. After revealing the information to them, the audience would stop making eye contact or almost immediately start an entirely different conversation topic. Other victims report that the comments they receive about their ordeal suggest that they should share the blame for the rape[footnoteRef:2]. Some of the victims also say that people imply that their previous sexual behaviors played a role in encouraging the assault. Such responses and reactions are more than sufficient to discourage public disclosure of a victim’s identity. Thus, the rape shield laws play a vital role in shielding the victim from public scrutiny. [2: Spohn C & Horney J, Rape law reform: A grassroots revolution and its impact. (2013).]

The extent to which rape shield laws are necessary can be manifested in the court case between a plaintiff William Kennedy Smith and her aggressor Kobe Bryant. Kobe Bryant, a famous basketball athlete, was accused of sexually assaulting the plaintiff. It happened that during the initial stages of the proceedings, court officials accidentally emailed the identity as well as information on her sexual conduct to the media. All of the alleged victim’s information was released on the internet including her home address, contact information, and photos. After the publication of the information, the victim dropped the case, and the judge eventually dismissed the case against the basketball star. Though the release of the victim’s identity was not as a result of the defendant's actions, it nevertheless denied the victim the chance to a fair trial and the possible prosecution of her aggressor. Since the victim feared continuous victimization, she opted to drop the case.

Rape shield Laws are instrumental for they avoid the harassment of a victim through questioning her past sexual experience on a witness stand. Before the ratification of rape shield laws by states and the federal government, the court admitted almost all evidence about the plaintiff’s past sexual conduct. Courts allowed the use of such evidence that the defense team would use to harass the victim. The occurrence resulted in a widespread attitude and belief among the male oriented legal community that evidence offered in a law court suggested that the plaintiff was promiscuous and would make a judge rule in the defendant's favor. Judges and magistrates believed that women with an active sexual past were more likely to agree to sexual advances of their alleged male aggressors. Thus, women were harassed for merely having an active sexual history.

However, today there has been a change in attitude. The use of humiliating attacks during rape trials by quoting a victim’s sexual past serves to infuriate the jury rather than contribute to the overall defense of a suspect. It is only under limited circumstances that a victim's sexual history can be scrutinized in court. For a victim's sexual conduct to be admissible as a defense in court, it has to pass through an admissibility test[footnoteRef:3]. [3: L DaSilva, The Next Generation of Sexual Conduct: Expanding the Protective Reach of Rape Shield Laws to Include Evidence Found on MySpace.,(2008)]

It is important to note that the failure to protect the identity of a rape victim and to leak her information to the media or the internet is similar to re-raping the victim. In such a case, a victims experience can be equated to third rape. The first rape is the first incidence that she encounters with her aggressor; the second one is the harassment by the defense team on the witness stand while testifying against her attacker and the third is excessive scrutiny conducted by social media. In the desire of media outlets to sell news by attracting viewership on their television channels and readership to their print and online platform, the media often subject victims to intense public scrutiny. More than often, the inspection is aimed at revealing damaging information about the victim since scandalous and controversial information about the victim sells more than information about her morality and ethics. In addition, when such information is released, the public tends to judge the victim subjectively and not objectively. The public may vent its negative opinion through social media and news panels in a way that emotionally hurts the victim. Mostly, media outlets force victims to relive the rape ordeal by broadcasting the story. The emotional torture that the victims face will remain longer even after the physical markings of the sexual assault occur. Furthermore, the victim’s right to privacy is violated at the expense of financial gain by news outlets. The rape shield laws thus play a significant role in the prevention of such an occurrence.

Rape shield laws were particularly vital in high profile sexual assault cases by providing a victim with a fair trial against a celebrity defendant. The damaging coverage on a victim done by the media coupled by the presumption that the aggressor was innocent by virtue of being a celebrity, denies the victim a fair trial. The reason is that due to opinionate and subjective judgment by members of the public in favor of the celebrity, victims are often left hopeless on whether justice will be served. Victims often feel that the judgments in favor of the celebrity by the public are a reflection of what judges will seek thus prompting them to drop cases against their aggressors.

Rape shield laws are essential in protecting the rights of victims who work in sexually suggestive set ups such as strippers and prostitutes. It is wrong to admit in court evidence about a victim’s sexual conduct with third parties in order to prove reasonable but mistaken belief of consent. The statement applies to strippers and prostitutes. Though they engage in sexually suggestive acts as well as consensual sex with others, it is wrong to infer consent and force them to have sex. If a man raped a prostitute or a stripper and produced evidence of their past sexual behavior in court and it was viewed as admissible, it will communicate the message that it is okay to rape sex workers. Furthermore, given that prostitution is illegal in the United States, victims would never report and subsequently never get justice for the crime committed against them. The occurrence will have a detrimental effect especially on former prostitutes who decided to reform and stop sex work. If raped and an aggressor decides to use their past sexual history as a defense, it is likely that she will not get justice even though she is reformed. For instance, in a court case dubbed the New Mexico State v. Johnson, the rape victim stated that the defendant, Johnson had lured her into his car. He then drove to a remote location and then raped her. In his defense, Johnson stated that it was consensual sex and he intended on producing evidence about the accuser’s acts of prostitution. Had the judge treated the evidence as admissible, the victim would not have gotten justice. The same applies to female porn actors since, without the rape shield laws, it would be permissible to provide evidence of their past sexual history in court thus making rapists[footnoteRef:4]. [4: A Gruber,Rape, feminism, and the war on crime., (2009). ]

Rape shield laws are important for they encourage victims to report their ordeal to the authorities and in the process of seeking justice for crimes committed against them. Most victims of sexual assault do not report their aggressors to the criminal justice system. As stated before, the reason is due to the fact that the judiciary may make them re-live the experience. It is no doubt that the collection of sexual violence statistics on unreported cases is challenging. However, it is believed that only, 15.8% to 35% of sexual assaults are reported to the authorities in the United States. Some of the reasons that victims quote for not reporting their aggressors is the fact that their identity might be compromised, details of their past sexual behavior might be revealed, and they may be excessively scrutinized. Thus, rape shield laws serve to incentivize victims to seek justice by reporting their aggressors.

When women report sexual assault to the authorities, the sad truth is that they are not always believed. The statement can easily be proved using high profile rape cases. For instance, radio host Jain Ghomeshi was accused of sexual assault and rape. Bill Cosby, a famous American based comedian, was accused by 36 women of sexual assault. Even the current United States President Donald Trump was accused of sexually assaulting and groping a number of women. In all of the three cases, the victims went public and bravely shared their stories. They were however dismissed and faulted or accused of playing a role that contributed to the sexual assault incident. The dismissal and accusations occurred despite deciding to gather immense courage and report events that they had decided to bury for years. The account of events demonstrates how important it is for sexual assault victims to have their ordeal hidden away from public scrutiny. People do not engage in the objective examination of details in such events and quickly pass judgment without carefully considering evidence. Fortunately, victims have the rape shield laws which can prevent such public prosecution that deters victims from pursuing prosecution of the assailants[footnoteRef:5]. [5: Caringella S, Addressing rape reform in law and practice (2009). ]

Rape shield laws serve to guarantee women the protection of the sexual freedoms. As noted earlier, prior to the ratification of the rape shield laws, for a defendant to be acquitted of rape charges, all he had to do was provide information on a woman's promiscuous past. Thus a woman’s sexual history was used to gauge her credibility as an alleged survivor of rape. If a woman has a sexual history, which consisted of having multiple sexual partners, her credibility would be compromised. During that era, testimony from a chaste virgin was considered to be more credible than that of a woman who had consensual sex with multiple men[footnoteRef:6]. Thus the acquittal of rapists using the reason that the alleged victim has a long history of consensual sex with multiple people implied it was okay to rape women who had multiple sexual partners. It, therefore, made women feel that having multiple sexual partners was a crime and it was fine to discourage them from it by raping them. The occurrence significantly denied women freedoms of the sexually while not placing restrictions on men. It was, therefore, a source of inequality. [6: Hines P, Bracing the Armor: Extending Rape Shield Protections to Civil Proceedings. (2010) ]

Rape shield laws play a significant role in today’s society. In the 19th century, rapists were able to get away with the crime by only presenting evidence of their victim's sexual history, proving that she was promiscuous to the jury and he would be acquitted. The occurrence was however unfair. The first assertion that this paper makes in that rape shield laws are necessary for the protection of a victim's identity. The law is instrumental in preventing fears of reporting their aggressors to the authorities among victims. The victims often fear that once their identities are revealed to members of the public, they would be subjected to the excessive scrutiny that is detrimental to personal privacy. The second assertion is that rape shield laws are instrumental in the prevention of harassment of a victim during trail through aggressive cross examination and questioning about her past. Prior to the formulation and implementation of the laws by states and federal governments, it was permissible to cross-examine a rape victim in court harshly. The harassment was majorly based on a victim's sexual past. Had it not been for the rape shield laws, rape victims were continuously forced to relive the abuse experience in court.

The third assertion that proves the importance of rape laws is that the failure to protect the identity of a rape victim and to leak her information to the media or the internet is similar to re-raping the victim. While aspiring to sell news stories, most media outlets tend to attract viewership by broadcasting and publishing controversial stories. These controversial stories are often those that are emotional or detail a negative event or a socially unacceptable scenario. Therefore transmitting the identity of a rape victim is an avenue that attracts viewership for the media outlets. The occurrence often works against the victim's wishes as she is subjected to intense criticisms and blame for exposing herself to rape. The paper also finds that rape shield laws are important for they incentivize victims to report their aggressors and seek justice. Without the laws, victims would not be able to gather sufficient courage to report the crimes as they fear their identities would be compromised. The laws also prevent victims from easily dropping charges against their aggressor’s high profile perpetrators by virtue of public dismissal and discouragement. However, I would like to question whether the men who are sexually assaulted encounter the same doubt women go through while reporting the violations.

References

A Gruber,Rape, feminism, and the war on crime., (2009).

C Spohn & J Horney, Rape law reform: A grassroots revolution and its impact. (2013).

Joanne Belknap, Rape: Too Hard to Report and Too Easy to Discredit Victims, 16 Violence Against Women1335–1344, 1335-1344 (2010).

L DaSilva, The Next Generation of Sexual Conduct: Expanding the Protective Reach of Rape Shield Laws to Include Evidence Found on MySpace., 13 uffolk J. Trial & App215–253, 215-253 (2008).

Michelle J. Anderson, From Chastity Requirement To Sexuality License: Sexual Consent and a New Rape Shield Law, SSRN Electronic Journal (2013)

P Hines,Bracing the Armor: Extending Rape Shield Protections to Civil Proceedings. (2010)

S Caringella, Addressing rape reform in law and practice (2009).