,,,Appropriating Women’s Thoughts: The Admissibility of Sexual Fantasies and Dreams Under the Consent Exception to Rape Shield Laws

Abstract

Federal Rule of Evidence 412 prohibits the admission of evidence of the victim’s prior sexual behavior and sexual predisposition. There are, however, exceptions to the general prohibition. Significantly, evidence of the victim’s sexual behavior with the defendant may still be admissible if the defendant claims consent. And, in the context of a consent defense, not only is the victim’s physical conduct with the defendant potentially admissible, but so are her voiced sexual fantasies or dreams involving the defendant. Thus, woman’s thoughts, imagined or even unconscious, may be appropriated as evidence of consent under current rape shield laws. The same rationale that was the foundation for the chastity requirement under traditional rape law also applies to the admissibility of women’s sexual fantasies and dreams under the consent exception—women who express sexual fantasies act outside social norms, have deficient character, and therefore such evidence is relevant to consent. Yet, sexual fantasies and dreams, based on imagined or even unconscious thoughts, do not make the fact of consent more or less likely. And, even though such evidence is not relevant to consent, courts have admitted it. This Article examines the admissibility of women’s sexual fantasies and dreams under the consent exception, traces its origins, highlights its application, argues that sexual fantasies and dreams should be excluded, and proposes a practical solution to address this problem.