Rape Shield Laws
During the mid-1970s to the mid-1980s, the anti- rape movement successfully convinced legislatures in almost every state to pass laws prohibiting improper cross-examinations. Generally, shield laws stipulate that the defense cannot introduce evidence about an accuser’s past sexual conduct unless the woman has been convicted of prostitu- tion, has had consensual sex before with the defen- dant, or has an obvious incentive to lie. Procedural guidelines provide for a hearing to be held in the absence of the jury, spectators, and the press. The aim is to permit the judge to determine whether the defense counsel’s allegations about the woman’s past are relevant and should be aired in open court.
Staunch supporters of shield laws want more restrictions placed on the ability of defense attor- neys to assassinate the complainant’s character as a way of impeaching her credibility. They cite several justifications: to encourage victims to go to the authorities for help by assuring them their privacy will be respected; to spare complainants the embar- rassment of having intimate details of their sex lives made public and used against them in court; to dispel the fallacy that “if she consented in the past she probably consented this time, too”; and to pre- vent juries from being distracted by allegations about the complainant’s past affairs when they should be focusing on the issue of the defendant’s use of force.
Critics of shield laws want fewer restrictions on the line of questioning a defense attorney can pursue. Limitations impair the ability of the accused to con- front his accuser effectively, and therefore to have a fair trial on a “level playing field” (Stark and Goldstein, 1985; Austern, 1987; and Lewin, 1992). Higher court decisions generally have upheld shield laws, concluding that most inquiries into an accuser’s reputation for chastity have little relevance for deter- mining consent. Furthermore, shield laws may not actually be working to protect the privacy concerns of rape victims. During trials, prosecutors may not object strenuously enough about what they consider irrelevant questions by defense attorneys that “merely” damage their clients’ reputations, and judges
may err on the side of the defendants in order to prevent subsequent convictions from being over- turned on appeal (Spohn and Horney, 1992).
When complainants turn to detectives and prosecutors for guidance, understandably they often ask how many people they will have to tell their account to, and whether their identities will be revealed in media coverage and court proceed- ings. Fears that extremely personal matters might be made public surely are heightened by cases like this one:
A young woman accuses two police officers of taking advantage of her after they brought her back to her apartment because she was too drunk to return home on her own. At the rape trial of the two officers, in a courtroom packed with over 100 people, she is com- pelled to confirm that she knows how it feels to be penetrated in one manner rather than another; a forensic evidence expert testifies that traces of three other men were found in her bed; and a close-up picture of her cervix is projected on a screen while the dueling attorneys debate the causes of redness. The officers are acquitted of rape but convicted of official misconduct misdemeanors, and are fired from the police department. The accuser files a lawsuit against the city and the officers for $57 million (Eligon and Baker, 2011a, 2011b).