Rape Shield Research Articles

Exploring Title IX Sexual Misconduct Policies in Higher Education: An Examination into the Breadth and Depth of Policies’ Content

ABSTRACT Schools are required to have written policies regarding the handling of sexual misconduct cases, but little research has examined the content of these policies. This study explored the content of Title IX sexual misconduct policies for 200 universities in the U.S. specifically assessing if the content is in line with the Title IX regulations set forth by the Trump administration. The results revealed that there were certain areas of high transparency, where the policies inform the students in-depth about their Title IX sexual misconduct procedure (e.g. confidentiality, how and where to report, standard of proof). However, there were notable gaps where the policies require further details in order to fully inform their stakeholders (e.g. cross-examination, rape shield provisions). Given the importance of having a comprehensive Title IX policy, future research and recommendations for improving schools’ Title IX policies are discussed.

The contemporary status of rape shield laws in India

This article critically analyses the current status of rape shield laws in India. The article begins by assessing the effectiveness of these laws by examining the statutory provisions and judicial precedents in India using a doctrinal methodology. The article would then assess the status of rape shield laws and their jurisprudence in England and Wales, and Canada for a comparative assessment and to draw valuable lessons for the Indian jurisdiction. It would also help address growing concerns about the possible overreach of these laws on the defendant’s right to a fair trial. Finally, the article will conclude with possible solutions for effectively implementing these laws in India while balancing the interests of the accused and the complainants.

The Contemporary Status of Rape Shield Laws in India

The Contemporary Status of Rape Shield Laws in India

The mother’s “character” on trial in child sexual abuse cases

ABSTRACT In response to the use of sexual history in rape trials to characterize the victim as untrustworthy, “rape shield” laws, limiting the use of evidence of the victim’s sexual history, have been introduced in India. Through a series of trial court decisions, this paper shows that in child sexual abuse cases, the victim’s mother’s “character” is scrutinized in a manner similar to the victim’s character in (adult) rape trials to argue that the accused has been falsely implicated. This issue has received limited attention in academic literature and has gone unnoticed by appellate courts. An analysis of the reasoning in these trial court judgements shows that the rules of evidence not only sanction this line of defence, but also that traditions of rape trials encourage its use. There is thus a need for a re-look at the existing rape shield provisions and the mindset of the Indian legal community.

Blaming Children: How Rape Myths Manifest in Defense Attorneys' Questions to Children Testifying About Child Sexual Abuse.

Since rape myths were codified in 1980 (Burt, 1980), scholars have shown that individuals who endorse rape myths perceive victims as less credible and more responsible for rape and perpetrators as less responsible. Studies also show that rape myths hinder successful adjudication of rape cases by influencing juries' assessments of perpetrator guilt (Dinos et al., 2015). While most of this research focuses on sexual assaults involving adult victims, some scholars have found that victims as young as 12 are blamed for rape. If rape myths influence the perceptions of sex offenses even when victims are children, then defense attorneys in child sexual abuse (CSA) cases may be motivated to highlight rape myth in CSA trials. In the current study, we conducted a content analysis of the cross-examinations of 122 children, aged 6 to 17, alleging CSA to determine if and how defense attorneys question children about rape myths. We looked for questions about force and resistance, motives to lie, victim precipitation, and character issues (e.g., habitual drug use). We found that defense attorneys commonly referenced rape myths in CSA trials. A total of 10% of all defense attorneys' lines of questioning referenced a rape myth, and attorneys asked 77% of children at least one rape myth line of questioning. Whether or not attorneys asked about different myths and the content of these questions varied by children's age. Our findings indicate that defense attorneys use rape myths strategically to undermine children's credibility in CSA trials, but they adapt (adult) rape myths in ways that are plausible in the CSA context. Policies formed to prevent the prejudicial impact of rape myths at sexual assault trials involving adults (e.g., rape shield laws) may not adequately prevent their impact in CSA trials. Prosecutors, therefore, should address rape myths at CSA trials.

Ignoring Implementation: Defects in Canada’s “Rape Shield” Policy Cycle

AbstractThis article employs a “policy cycle” framework to explore Bill C-51, legislation which contains Canada’s latest amendments to the “rape shield.” Through an in-depth evaluation of earlier rape shield reforms, as well as a content analysis of the legislative proceedings of Bill C-51, this paper reveals that, while the impetus for introducing rape shield legislation is to protect the equality and privacy rights of sexual assault complainants, the legislative process of these “policy cycles” focuses disproportionately on remedying due process concerns and less on the problems that arise in judicial implementation of the provisions. We situate this finding within the larger trend towards the “judicialization of politics,” and trace some of the institutional and structural obstacles that impede Parliamentarians from more effectively legislating to improve sexual assault trials for complainants.

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

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.

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

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

Sexual Behaviour Evidence and Evidence of Bad Character in Sexual Offence Proceedings: Proposing a Combined Admissibility Framework

This article critically evaluates whether the ‘rape shield’ legislation in England and Wales, as currently contained in s 41 Youth Justice and Criminal Evidence Act (YJ&CEA) 1999, is fit for purpose. The article addresses the impact of the case of R v Evans (Chedwyn) [2016] EWCA Crim 452 which received a disproportionately high amount of media scrutiny and led to subsequent calls for greater restrictions on sexual behaviour evidence. The article examines possible reform proposals by Findlay Stark and Matt Thomason and the results of empirical research conducted by Laura Hoyano before proposing the introduction of a ‘combined admissibility framework’ for evidence of a complainant’s previous sexual behaviour and bad character. The proposed framework seeks to retain the high threshold for the admissibility, in particular, of evidence relating to a complainant’s previous sexual behaviour while introducing a more holistic and straightforward model moving away from the strict categories approach adopted by s 41 YJ&CEA 1999.

A five-year gender equality score card for the Philippine Supreme Court under its first woman Chief Justice: opportunities seized and missed

ABSTRACT On 24 August 2012, the Honourable Maria Lourdes Sereno was appointed Chief Justice of the Philippine Supreme Court, the first woman to hold such position since its establishment in 1901. Several cases involving important women’s issues decided during her term were reviewed in this work, inspired by the possibility that a young, brilliant and hardworking woman of humble beginnings sitting at the helm could make a difference. Indeed, the Chief Justice manifested commendable grit in registering meaningful dissent in Imbong v. Ochoa, where she championed women’s bodily autonomy, and when she wrote a provocative concurrence in Vinuya v. Romulo, where she gave hope to women who suffered wartime atrocities. However, she missed an opportunity to put the rape shield law into good use in deciding People v. Batuhan and Lacturan. Her concurrence was also disappointing in Garcia v. Drilon, where she favoured rational basis review over intermediate level of scrutiny for gender-based classification, in People v. Jumawan where a conviction for marital rape was based on romantic paternalism, in People v. Palotes where additional compensatory damages were not considered for a rape victim who bore a child, in People v. Tionloc where acquittal was based on rape myths, and in People v. Caoili where the Court refused to call rape by its ugly name.

성범죄 가해자와 피해자의 성관계 이력 등의 증거능력 : 우리나라에서 미국 증거법 규정(rape shield laws 등)의 도입 검토

성범죄 가해자와 피해자의 성관계 이력 등의 증거능력 : 우리나라에서 미국 증거법 규정(rape shield laws 등)의 도입 검토

Reforming Indonesian Rape Law: Adopting U.S. Rape Shield Law in Excluding Prejudicial Evidence

Rape is a complicated crime in term of law enforcement. It is usually occurred by someone who has close relationship or connection to the victim. The availability of evidence is also limited. Unfortunately, sexual violence victim often does not receive proper handling from law enforcement. In several cases, the judge undermined victim’s testimony because of past sexual history and lack of resistance that led to more lenient punishment or acquit the defendant. Therefore, I assert that rape law itself should be revised to minimize judge’s prejudice or bias to several shreds of evidence. I suggest that Indonesia could learn from U.S. rape shield law that gives more protection to sexual violence victim. This law encourages the victim to report and increases the probability of conviction because it excludes victim’s previous sexual history and lack of resistance.

The Relevance of Sexual History and Vulnerability in the Prosecution of Sexual Offences

The investigation and prosecution of sexual offences remains one of the most fraught and problematic aspects of criminal justice. Even with the introduction of various protective measures for vulnerable witnesses and complainers, deep and justifiable concerns persist about the level of reporting to the police, the extent of attrition, and the conviction rates.The treatment (actual and perceived) of complainers in the court room has a significant influence on these matters. Although ‘rape shield’ protections have been embedded within criminal justice systems for some time, it has been suggested by commentators in various jurisdictions that these legislative efforts remain susceptible to being sidestepped either through defence trial strategies or through “judicial override”, such that the law in action is less protective and useful than was hoped. Using Scotland as a case study, this paper examines the ways in which laws designed to protect sexual assault complainers in Scotland fail in practice. We use the lens of vulnerability to examine the problematic ways in which criminal evidence and procedure in Scotland fails to protect many of the most vulnerable victims of sexual assault, despite recent reforms. We will argue that focusing on the ‘rape shield’ provisions, as well as the measures designed to protect vulnerable witnesses, as ‘solutions’ to the problems faced by sexual assault complainers in an adversarial system, allows us to ignore more systemic questions about how the criminal justice system itself produces or perpetuates vulnerability, as well as how the criminal justice system understands and promotes a certain view of what it means to be vulnerable. We suggest that more research is urgently required to shed light on the extent of the ‘justice gap’, and that further and deeper reform is needed, at the substantive, procedural and cultural levels.

Sexting as 'Sexual Behavior' Under Rape Shield Laws

As part of the proliferation of online communications, there has been a global increase in sexually explicit social media messages and consensual sexting among teenagers and adults of all ages. As a result, these kinds of electronic communications have begun to be used as evidence in a wide variety of court cases, including sexual harassment and discrimination cases. However, courts have only begun to consider whether such communications, particularly sexting communications, should be usable to impeach a sexual assault complainant, or whether these kinds of communications should be protected under rape shield laws as sexual “conduct” or “behavior.” This article traces the history of rape shield laws in four common law countries: the United States, Canada, the United Kingdom, and Australia, and, using the history and purpose of these laws, argues that sexting should be protected under rape shield laws to protect sexual assault victims from unnecessary questioning about evidence that is likely to be embarrassing, prejudicial, and irrelevant to the case.

Comment on Prof. Imwinkelried's 'Formalism V. Pragmatism in Evidence: Reconsidering the Absolute Ban on the Use of Extrinsic Evidence to Prove Impeaching Untruthful Acts that Have Not Resulted in Conviction': Just What Evidence of Witness Misdeeds Does Federal Evidence Rule 608(B) Exclude? --- Imwinkelried vs. Rothstein

Prof. Edward Imwinkelried, one of the country’s most renowned Evidence scholars, in a recent article in this journal, perceptively identifies three specific examples of evidence of a witness’s prior unconvicted - for misconduct which he correctly believes should be admissible to impeach the witness’s credibility in the discretion of the trial judge: 1. Evidence of demonstrably false previous accusations of rape against the present defendant by the complaining witness in a rape prosecution (assuming the rape shield would not exclude) which the witness will not admit to during cross examination;2. Documentary evidence proving an unrelated misdeed of a testifying witness clearly evincing the witness’s lack of credibility, where the witness himself on cross exam could authenticate the document so it could be used conveniently and expeditiously without undue time consumption; and3. Evidence of the result in an unrelated previous civil action, for example where the witness was a party and an adverse verdict clearly establishes his position was fabricated, or where he was only a witness but the verdict makes it clear the trier of fact rejected his contention as fabricated.I agree with Prof Imwinkelried that these can be powerful pieces of evidence on occasion and should be admissible in the judge’s discretion upon consideration of such factors as probative value on the issue of the witness’s credibility, time consumption, and prejudice. But Prof. Imwinkelried and I disagree as to whether the literal language of Federal Rule of Evidence 608(b) bans them absolutely. Prof. Imwinkelried believes it does, and therefore should be amended. I believe it does not and therefore does not require amendment.

Rejecting the Purity Myth: Reforming Rape Shield Laws in the Age of Social Media

Rejecting the Purity Myth: Reforming Rape Shield Laws in the Age of Social Media

Handling Sex Crime Cases During a Time of Victim Rights

The plethora of recent victim’s rights legislation makes it tougher to defend sex crime cases and more likely that innocent defendants will be subjected to lifetime restrictions if convicted. In order to tread the fine line between victims’ rights and zealous representation, defense attorneys need to recognize the areas of the law that are the trickiest to navigate under these new victims’ rights standards and the actions they can take to minimize their effects on the defense. These actions include scrutinizing the case more deeply, hiring private investigators and forensic computer experts. Attorneys should also be familiar with the “first complaint” rules in their state, as many courts now allow the in-court use of hearsay regarding the victim’s initial report to another person. The prejudicial joinder of offenses is another recent development in victims’ rights, forcing defense attorneys to be wary of this effect of judicial efficiency. Additionally, the continued expansion of rape shield laws makes it increasingly difficult to use instances of non-truthfulness to impeach victims in sex crimes cases. Trial practice is also affected by this victims’ rights era. Thus, it is important for all attorneys to identify a viable and creditable theory of defense, use voir dire to thoroughly vet prospective jurors, attempt to provide as much relevant and material impeachment evidence as possible under the rape shield statutes, and find the proper balance between zealous representation and not demeaning or degrading the purported victim.

The Scottish “Rape Shield”: As Good as it Gets?

☼ Professor of Criminal Justice, University of Aberdeen. I am grateful to Liz Campbell, Fiona Leverick, Fiona Raitt and Margaret Ross for various helpful discussions I have had with them on this topic. 1 I will use this phrase as a convenient abbreviation despite the fact that in the Scottish case of MM v HM Advocate 2004 SCCR 658 (reported sub nom Moir v HM Advocate 2005 JC 102 but without Lord Macfadyen’s opinion), Lord Macfadyen (at first instance) indicated at para 13 that he did not like the term, agreeing with McLachlin J’s disapproval of the phrase in the influential Canadian case of R v Seaboyer (1991) 83 DLR (4th) 193 at 258e. Additionally, I shall refer to “rape” trials throughout, rather than sexual offence trials more generally, because it is in the former that the issue of sexual history is most likely to emerge owing to the frequent use of the consent defence. However, many of my comments will also apply to the trial of other sexual offences.

Bracing the Armor: Extending Rape Shield Protections to Civil Proceedings

While almost all states have evidentiary protections excluding evidence of past sexual history for rape victims in criminal proceedings, very few have adopted similar protections in civil proceedings. This paper examines the need to extend these protections in order to encourage victims to come forward not only to be compensated for their injuries, but to hold their attackers fully responsible and encourage reporting. Civil proceedings provide a number of advantages to rape victims not available in criminal courts, but are nonetheless susceptible to the same cultural myths that make rape shield protections necessary. I argue that rape shield protections should be extended to civil proceedings for the purposes of both liability and damages.

Litigating Sex Crimes in the United States: Has the Last Decade Made Any Difference?

This comprehensive article reviews the history of advocacy on behalf of adult and child female victims of rape and other sexual assaults, focusing on both long term and short term trends. The first section provides statistical information about victimizations, rape reporting and prosecutions over the last 15 years. The second section explores the variety of issues that arise in the context of rape shields, including the extent of admission of evidence of prostitution and promiscuity, and urges that judges be required to find preliminary facts by a clear and convincing evidence standard before admitting any evidence of the complainant's sexual life that the defense claims is not barred by a rape shield. In addition, a reverse balancing test should also be required prohibiting such evidence of a sexual nature unless its probative value substantially outweighs the danger of harm to the complainant or unfair prejudice to any party. The author argues that these restrictions do not violate the Confrontation Clause.The next major section discusses the admission of the defendant's prior acts to prove propensity and lustful disposition. The author does not support the general admission of propensity evidence, but favors a flexible approach to the admission of Rule 404(b), particularly in child abuse cases, which is currently the prevalent approach. To the extent that propensity evidence is generally permitted, such as under the Federal Rules and in California, the author would also subject its admission to a clear and convincing evidence standard. Other topics addressed include rape counselor privileges; fresh complaint; DNA database issues, Sexual Abuse Response Teams and the use of forensic nurses.The article also explores how the rights of crime victims affect trials of sex crimes, and urges that more attention be given to providing legal assistance to child victims of sexual assaults. The article concludes by looking at evidentiary issues in child abuse cases, such as competency, remote testimony, expert testimony, and discusses the child friendly courtroom in light of Crawford's ban on testimonial statements in the absence of a declarant who has been subjected to cross examination.