The Rape Shield Law

 A rape shield law is a law that limits the ability to introduce evidence or cross-examine rape complainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim.





The first rape shield law was passed in the U.S. state of Michigan in 1974, and within two decades almost every U.S. state had enacted one. Although the laws were popular in the United States, they also drew critics, who sometimes charged that the laws violated a defendant’s Sixth Amendment right to confront his accuser. In the United States, some opponents claimed that such laws were too onerous for the defense and violated civil liberties, such as the freedom of speech.




Rape shield laws may apply to both federal and state criminal and civil rape cases except in limited circumstances, such as when the consent of the accuser can be shown or when there is a shared history between the accuser and the accused. The defense may also be required to prove that the exclusion of such evidence would violate the defendant’s constitutional rights.







State Rape Shield Laws


Many states have rape shield laws. In general, such laws are more protective of the confidentiality of rape victims’ prior sexual conduct with individuals other than the defendant than of the victims’ prior consensual sex with the defendant. For example, a rape defendant would have a more difficult time trying to call to the stand the victim's ex-boyfriend than introducing evidence that the defendant himself had been her boyfriend. The rationale for the different treatment of the evidence is that a victim's sexual conduct with third parties has no relevance to issues raised in the alleged rape, while evidence of a victim's conduct with the defendant may go to consent during the alleged rape under certain circumstances. These laws differ from state to state.







Federal Law


The Violence Against Women Act includes a federal rape shield law prohibiting rape defendants in federal cases from using a rape victim’s sexual past against her in court. While most rape cases are prosecuted under state law, the federal rape shield law may be invoked in rape cases arising on Native American tribal lands. Unfortunately, the Uniform Code of Military Justice has not incorporated the federal rape shield law and harsh questioning of rape victims in military courts is a common tactic, illuminating the pressing need for such shield laws.






Rape shield laws vary a great deal from state to state. Talk to an experienced criminal lawyer in your area for more information about whether your state has such a law and, if so, what it provides.

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