Excluded evidence: The dark side of rape shield laws

Reason, Feb, 2002 by Cathy Young

* In Oregon in 1989, James Anderson was convicted of raping "Donna R." while both were patients at a substance-abuse clinic. Anderson insisted that the sex was consensual and that Donna made up the charges in order to sue the clinic, which threw her out the morning after the alleged rape because she wouldn't sign up for long-term treatment. After initially claiming that she had tried to tell clinic staffers about the attack but was rebuffed, Donna reversed herself under cross-examination and said that she had not spoken about it to any of them because she was too embarrassed. In his summation, the prosecutor sneered that the defense expected a rape victim to "just walk up to one of the staff" and discuss "those most intimate details."

The jurors were never told that the day before, she had discussed equally "intimate details"--an alleged earlier rape and childhood sexual abuse--with one of the counselors. All records of this conversation were excluded from the trial under the rape shield law as pertaining to the accuser's sexual history; so was the fact that Donna had given several inconsistent accounts of her prior sexual victimization, Whether or not Donna was raped, the case seemed to leave ample room for reasonable doubt--particularly if one knew that Donna was not a reliable witness.

When rape shield Laws were first enacted as part of the rape law reforms initiated by the feminist movement, they were a response to truly abusive practices. Just 30 years ago, jurors in rape cases were often formally instructed to consider evidence of "unchaste character" (such as going to bars alone, extramarital liaisons, and use of birth control) as detracting from the complainant's credibility or indicating that she was more likely to have consented to sex.

But in recent years, even some feminist legal theorists, such as Vivian Berger, have expressed concern that the pendulum may have swung too far. Granted, the accuser's past sexual conduct is not automatically excluded--just as, before shield laws, it wasn't automatically allowed. Her prior relations with the accused are generally admissible; so is evidence that the pregnancy or disease alleged to have resulted from the rape may have been caused by sex with someone else. In some states, other evidence may be admitted at the judge's discretion.

Most of the time, however, the burden is on the defendant to show that the value of this evidence to his case outweighs its "prejudicial effect" on the complainant. In several states (including Alabama, Iowa, and Washington), courts have held that excluding evidence of an earlier false or dubious rape complaint by the accuser does not deny the accused a fair trial--even, perhaps, if the evidence is relevant to the question of his innocence.

In some cases, such as People V. Fovanovic, appellate courts have curbed the worst abuses of rape shield laws. But this is an issue that is overdue for a new look by legislatures, even if reforms are likely to engender a furious reaction from feminist groups.