I’m 99% certain that rape shield laws don’t apply to the actual trial. YOu will get to confront your accuser at trial.
As for blaming the victim, given that most college rapes involve pretty serious intoxication on the part of the victim and often the perp as well, it would seem that not drinking while in college is a pretty fullproof way to avoid getting raped. It’s not blaming the victim to point out extreme idiocy. If you get drunk with your close friends in their apartment, you have the expectation that you’ll be safe. If you get drunk around 100 strangers, that is an extremely unsafe situation and it shocks me that so many people don’t seem to get that. But in general, I’ve noticed that people under 30 tend to have a really blase attitude about drugs and alcohol. These are people who won’t buy veggies that aren’t organic but will accept drugs from strangers at parties.
In my OP I provided a link to an article by legal experts who concluded that some rape shield laws run afoul of the Sixth Amendment. This was clearly a reluctant conclusion on their part unless they were being extremely disingenuous.
Yes and no. You do get to confront your accuser at a criminal trial, but that’s also where the rape shield laws apply. Rape shield laws in general limit the ability of the defendant to question the accuser or present evidence about her past sexual behavior unrelated to the incident in question. Here is NY’s rape shield law
First off, we have 5, a very big exception that allows the the evidence in if a judge finds it to be relevant and admissible in the interests of justice. 3 and 4 allow the evidence in if it rebuts evidence introduced by the prosecutor and 2 allows the evidence if it shows the victim was convicted of prostitution within the last three years (which is ridiculous- prostitutes can be raped) . 1 allows the evidence in if it proves specific instances of the victims prior sexual behavior with the accused.
So what evidence of a victim's prior sexual conduct is both excluded under those rules and is relevant to the question of whether this defendant raped this accuser on this occasion? Sure, it keeps the defendant from asking how many people the accuser has slept with and it keeps the defendant from presenting witnesses to show the accuser has a reputation for being promiscuous , but how are those issues relevant?
An article apparently written in 1980, if I read it correctly. The rule they talk so much about has been amended several times since then. What do YOU find so objectionable about rape shield laws?
ETA:
There are several exceptions written intoRule 412. How do YOU feel they don’t go far enough to protect the Constitutional rights of the accused?(By this I don’t mean authors wrote more than30 years ago about the laws as it stood then?)
None of that sounds unreasonable to me. Promiscous girls get raped too, doesn’t mean they don’t have a right to get justice. The victim’s past sexual conduct is not relevant.
But the accused does get to confront the accuser on the facts of the actual case.
What a dumb fuckin question, wolfpup. I won’t bother to coax the dumb fuckin point out of you that you think you’re making, just to say that in your example, Slacker’s not behaving well. You want to resuscitate your argument, go for it.
As I understand it, that was kinda the whole point of rape shield laws. “Hey, she is a slutty slut!” used to be a valid defense to a rape charge. Rape shield laws made it a damned sight more difficult to defend by casting aspersions upon the moral character of the alleged victim. It didn’t erase the right of the accused to confront his victim. It just means that it doesn’t 't MATTER if she was promiscuous. By default, the accused cannot introduce evidence that her sexual history is relevant. If the accused has a valid reason to introduce sexual history, they can go through the procedure to present that evidence. But the “shield” part doesn’t mean that the victim can accuse without confrontation.
I am not the OP, but am a lawyer with a (partial) criminal law practice and have experience in defending rape cases so my own personal opinion is
Generally, I have no problem with it, as I show above, restrictions of evidence of sexual history are nothing new. The issue is that certain types of statute which have been written as making a blanket ban with certain enumerated exceptions; with no judicial discretion to permit in the interests of justice. Those kinds of statutes I do have a problem. They tend to have a high potential of excluding relevant evidence.
For instance, Michigan in the US created some of the first statutory rape shield statutes in common law countries. The statute was made in the 1970’s, with heavy influence from the Women’s Task Force on Rape in Michigan (legitimate concerns but a group of non-lawyers,). The statute was extremely restrictive, it barred sexual history from being adduced (with two stated exceptions) and gave no residual discretion to a judge to allow evidence in the interests of justice.
In actual practice, the statute tended to be unworkable. It was criticised by practitioners for being too restrictive, for keeping relevant and often exculpatory evidence out and leading to miscarriages of justice (see Farhat, Leo A and Kraus, Richard C. Michigan’s Rape-Shield Statute Questioning the Wisdom of Legislative Determinations of Relevance Criminal Law Symposium: Convicting the Guilty and Acquiting (sic) the Innocent: Impediments to the Search for Truth 4 Cooley Law Review 545).
At the end the Courts were compelled to either allow miscarriages of justice to continue or to read the statute down. And the latter is what happened, in People v Hackett 365 NW 2nd 120 (1984), the Court created out of whole cloth an exception to permit relevant evidence.
A situation where Courts find themselves having to either permit a miscarriage to occur or to eseentially rewrite a statute is not a good one. A statute which restricts evidence, to enumerated exceptions is always going to run that risk. We have seen that in the US, in England (R v A) and in Australia.
Statutes which retain a residual discretion for judges to allow evidence according to peculiar circumstances of a case tend to be far better.
As was pointed out in the OP’s own cite, sometimes it was a …mitigating …factor:
At common law, the rules governing the use of a rape complainant’s sexual history provided that such evidence was always admissible. Three elements combined to create the rule of admissibility. The first was the fear of false charges brought by vindictive women. Sir Matthew Hale, Lord Chief Justice of the King’s Bench, stated that rape "is an accusation easily to be made … and harder to be defended by the party accused, tho never so innocent.‘’ Second was the concept that chastity was a character trait. If a woman could be shown to be unchaste by nature, then it could be inferred that she had consented to sex with the defendant. Third was the belief that premarital sex was immoral. Acts of previous illicit sexual relations, like other acts of moral turpitude, could thus be used to impeach the credibility of the complaining witness in a rape case.
This week, Germany passed a new rape law. Until then, the law said that if the victim said no but the attacker had sex with them anyway, it was rape, but if the victim did not say no, perhaps because they were unconscious or drugged, it wasn’t rape. Astonishingly backward, it took the New Years Eve attacks to prompt this change.
I doubt there’s good statistics backing this up, but the police believe that the vast majority of victims reporting rape are telling the truth… but are more likely to lie about this crime than any other. A false accusation of rape can destroy someone’s reputation. (The stats I saw were 92% truthful, 8% not, about 4 times less truthful than for other crimes.)
Because rape is such an emotional topic, it’s nearly impossible to even talk about it without provoking a backlash, even if the person doing the talking is the police. If someone left their door unlocked and they were robbed, the police would say that the burglar committed a serious crime, and would suggest that the victim start locking their door. If someone got really drunk and was sexually assaulted, the police would say the attacker committed a serious crime, and would suggest the victim not pre-drink before going to a party to get drunk… and would get virtually pilloried since apparently that’s blaming the victim.
I’m thinking of that recent case. The guy got only six months, which is a tragedy. IMO, rape should be punished as severely as murder.
They are relevant in that they can lend support to the accused’s counterclaim that they had consensual sex. That claim is far more realistic and believable if the victim has a history of promiscuous sex than if she does not.
There’s no cutoff point. The more promiscuous a given person is, the more likely it is that they had consensual sex with some other tenuously-connected person, all else being equal.
So the more partners a person has/had, the less protection under the law they are entitled to when it comes to disputes over whether or not they consented to sex at any given occasion?
If you don’t mind, I’m going to stick with the logic that I laid out rather than switch to your inflammatory distortion. Just an odd quirk I have, I know, but try to bear with me here.
Is there a reform period that a promiscuous girl can undertake to regain protection under the law? If she was formerly promiscuous, how long must she be chaste before her sexual history would no longer be relevant?