Rape Shield Legislation: Relevance, Prejudice and Judicial Discretion

Abstract

This article analyzes sexual assault legislation as it stands since the Seaboyer case. Through a discussion of the legislation leading up to "rape shield" laws and the accompanying case law, Kobly reveals the strengths and weaknesses of Parliament's effort to effectively handle the problem of sexual assault against women. Ultimately, Kobly concludes that legislation which creates blanket exclusions, such as the legislation considered in Seaboyer, is indeed unconstitutional and that the proper way to ensure only relevant, probative issues are considered in sexual assault cases is to encourage an attitudinal change within society so as to eliminate the negative and pornographic myths and stereotypes that have developed about women and sexuality. According to Kobly, once these have been eliminated, judges should be able to properly exercise their discretion to control what occurs within the courtroom so as to encourage sexual assault victims to step forward and trust the judicial system.