You Be The Judge: Are Rape Shield Laws Ex-Post-Facto?

A man has sexual intercourse with a minor child in 1968.

Today, he is charged with the crime and goes to trial.

At trial, he tries to elicit testimony about previous sexual partners the minor child had, in an effort to rebut the inference that, if a medical exam showed evidence of intercourse, he was the only one that could have been responsible.

The prosecution objects, citing the protections offered by the Rape Shield law.

The defense argues that since there were no rape shield laws in 1968, applying them to this case in, in essense, an ex-post-facto application, and thus unconstitutional.

You are the judge. Should the present-day trial of a 1968 rape include the protections of the Rape Shield law?

I don’t think it’s ex-post facto. This is a change in trial procedure. The crime he is charged with, statuory rape, was illegal at the time of the alleged infraction.

BTW the OP says “A man has sexual intercourse with a minor child in 1968.” Did you mean to posit that he was charged with having had sexual intercourse with a minor child in 1968? As is stands, the OP assumes that he was guilty of statutory rape.

Don’t the ex post facto ban only apply to punishments? I don’t think a rape shield law is a punishment, it’s meant to be a protection for the victims so that irrelevant details of their sexual past won’t be brought up in court.

:grits teeth:
:swallows pride:
“What december said.”
:Takes anti-nausea medication:
:Contacts therapist:


I thought ex post facto applied to criminal offenses (e.g. if we outlaw Gatorade tomorrow I can’t be arrested for drinking it today). This is a change in the trial procedure but the defendant is not being charged with an ex post facto crime. Is ex post facto broader than I thought it was? I’m perfectly willing to be corrected.

I agree with everyone else, just because I’m too shocked by the fact december and minty agree. My desire to be loved by all people, of all different political backgrounds make me agree that rape shield laws do not violate the ex post facto clause.

Well, those reasons, and most of the cases that have considered the issue have found the rape-shield laws to be a change in the rules of evidence that govern character evidence or evidence bearing on the credibility of the witness. As such, they do not deny the defendant of a potential defense, and do not effect the substantive rights of the defendant. So they don’t violate the ex post facto clause. If you’re interested, check out 1 A.L.R.4th 283. It’s in section 7.

The rape shield law refers to trial that occur after the law was passed.
The rape shield law does not apply to rape trials that occurred before the law was passed.

I think the argument implied in the OP would have to be that, regardless of the text of the statutory rape statue in 1968, in practice a person would not have been convicted of such a crime if he were able to prove the “victim” were slutty, the argument ultimately being that, in practice, sleeping with a promiscuous minor was not a crime. Even assuming this was true at the time, I don’t see how the rape shield law implicates the Ex Post Facto Clause. Consent or promiscuity simply are not at issue in a statutory rape case – the only question at issue is whether the sex happened. Even if juries consistently acquitted men in this position, that would clearly be an instance of jury nullification of an actual crime, not of a narrow legal definition thereof. The Ex Post Facto Clause insulates people from changing definitions of actual crimes, not the inability to count on a jury nullifying in contravention of the facts and the law. Therefore, I don’t see how these laws could have any interaction from the Ex Post Facto Clause.

Of course, I personally believe the rape shield laws are unconstitutional because they violate the Sixth Amendment, although I believe most courts who’ve addressed the issue disagree with me.


I think the argument advanced by the defense was not that the victim was “slutty” - but rather that there’s a inference, when a minor child shows physical signs of sexual intercourse, and if she’s named the accused as her partner, then the jury infers that he is the only possible source for the sexual intercourse… in other words, the physical evidence corroborates her story in the jury’s mind, even though it really only proves that she’s had sex - not who she had sex with.

To rebut the inference that if the girl had sex, it must have been him, the accused sought to show the jury that she had had other partners. When the prosecution raised a Rape Shield objection, the defense advanced the argument that at the time the crime was committed, he could have made this defense. Since he can’t now, the EFFECT of the law was to deprive him, after he committed the crime, of a defense for the crime.

That, he argued, was prohibited by the Ex Post Facto clause.

I think I need a legal refresher in what a Rape Shield law is intended for. Bricker actually gave definitions for this several times in another thread relating to rape in GD only days ago but I’m still missing something.

I understand that the Rape Shield laws are (I think) intended to protect women from being labelled ‘slutty’ and using that as a defense. But why can’t a defendant bring in evidence that a woman was having sex with multiple partners at the time the rape occurred? To be more specific DNA evidence did not exist in 1968. The woman in question persumably provided evidence that a rape was committed and then 35 years later fingers a guy. Why is it wrong for him to show in court that there were several guys who conceivably could be the rapist? There is something odd about a 35 year wait for the culprit to be named so this would seem a reasonable defense in this case.

Of course I’m no legal expert so enlighten me.

Not really on topic, but I think I have to object to the use of the word sexual “partner” as applied to a child. “Partner” implies some sort of equity or consent in the act. The child may have had other rapists but legally, she could not consent to having any “partners.” Speaking of other “partners” implies a certain promiscuity that I think is inappropriate when speaking of a child.

You’re absolutely right. I was speaking in generalities, and those general terms were inappropriate when a child victim is involved. Quite correct.

Thanks, Bricker, I didn’t assume any malicious intent on your part. I realized you were probably just speaking in a detatched legal manner without intending to impugn the victm. Thanks for appreciating my point, though. :slight_smile:

It’s been a year since I took evidence, but IIRC there’s an exception for this, in the limited context of showing another possible source for the semen. Most of the rape-shield provisions were designed to end the practice of smearing the alleged victim’s character. Evidence at trial conceptually comes along with a theory of relevance under which it was introduced. Evidence you couldn’t introduce as relevant to character you can sometimes introduce as relevant to intent, motive, opportunity, plan, design, or a litany of other things.

RexDart: true. So, more detail: under the Rape Shield laws, there’s an admissibility hearing on the issue. The defense objected to having to go through the admissibility hearing because there was no such evidentiary threshold in 1968.

But doesn’t that additional fact just illustrate that the rape-shield law is procedural/evidential? The “ex post facto” clause is violated by an admissibility hearing? That seems quite a stretch to me.

Having to go through an admissibiltiy hearing on evidence is not a change in the definition of the crime, penalising conduct that was legal at the time it occurred, nor does it increase the possible sentence retroactively.

Wouldn’t be allowed as rebuttal? I mean, if she said under oath that she had not had intercourse before, forced or otherwise?

Is there a statute of limitation on rape?


In this case, the finding was that the statute’s running was tolled because the victim did not discover the assault until later in life; she had repressed the memory and rediscovered it with therapy.

If a state went from a twelve person jury to six, would that be ex post facto?


That seems pedantic to me. First of all, the fact that she is unable to legally consent does not mean she was unable to consent. Secondly, even if she did not consent, so what? If I put a gun to your head and demanded that you play doubles tennis with me, would say that you aren’t really my partner because you didn’t consent?


Well, first of all, I think that any testimony elicted by therapy should be treated as hearsay, since it lacks both the threat of perjury (any such charge can be responded to with “Gee, I guess those memories were false”), and an effective opportunity to cross examine (unless the witness is required to go back to her therapist and “recover” whatever memories the defense asks for. Also, what the tolling law? I wasn’t able to find anything on tolling for statutory rape.

I did, however, discover something that I find rather disturbing: apparently there is essentially no statute of limitations on perjury in Montana. Once you make a false statement, they have you. If you ever recant, the statute of limitations does kick in, but from the date of your recantation. And if that runs out, they can just ask you the same question. If your answer concurs with your first statement, then they can accuse you of contradicting your second statement, and the statute of limitations begins again on your third statement. If your answer concurs with your second statement, then they can accuse you of contradicting your first statement, and statute of limitations again starts anew. I this belongs in another thread, but I found that amazing. Why even have a statute of limitations if the DA can so easily work around it?