On The Rape Shield Law - Research Proposal Example

? [Deficiencies in US Rape Shield Laws] al Affiliation Introduction In all the fifty s of United s there are Rape Shield laws enacted to protect the interest of the so called complainants. Evidence as to previous sexual conduct provided by the defendant in a criminal suit relating to the prosecution of an accused in rape cases and sexual assault cases are inadmissible. Despite the purported and perceived protection, which the enforced Rape Shield laws serves to give to the complainants, there may be some flaws in the laws itself, which may prejudice the interests of the defendant. The defendant may not be able to present his side of the story in front of the judge or to provide evidentiary support to prove his innocence in case where previous sexual conduct of the victim is not taken into consideration. Thus, false and unjust incarceration of the defendant may happen. The rape shield laws are deficient in some ways and specific amendments have to be brought into the rape shield laws to provide a fair and just decision to the defendant as well as the victim. Though the rape shield laws is an accepted statute, mainly for the purpose that it seeks to protect the victims of rape, yet, acceptance does not eradicate the contention that rape shield laws may have some inherent deficiencies that needs to be taken care of to make it a more acceptable and fair form of legislation. The present research paper is devoted to explaining the deficiencies that are inherent in the rape shield laws, which may prejudice the legal rights of the defendant and at times even the victim. The basis of the contention is deficient and vague rape shield laws in different states, constitutional criticism of the rape shield law and failure of the laws to fulfill their purpose in exceptional cases where high profile is involved. 2. Vagueness of Rape Shield laws in Different States The rape shield laws in different States are different. There is no uniform set of laws like the Uniform Commercial Code, which may be applicable to all the states. This increases vagueness of the law itself. Each state has its own set of laws enacted with its own set of exceptions, sometimes distinct from that which is enacted in a particular state and sometimes completely different from other states. For instance, as per the Alabama statute any evidence relating to the past sexual behavior of the complaining witness is admissible with an exception that evidence shall be admissible, when it is found that past sexual behavior directly involved the participation of the accused. On the other hand, though most states have in one way or another bared the admissibility of the past sexual conduct, however, the exceptions to such restriction is sometime less stringent and in some cases more stringent. In comparison to the exceptions to rape shield laws, which is in force in Alabama , the exceptions in Texas, Utah and Vermont are more stringent, as evidence is acceptable where probative value outweighs danger of unfair prejudice .1 This indicates while defendants in certain jurisdictions get better opportunities to prove their innocence while at other jurisdictions do not. 2. Constitutional criticism There are some inherent deficiencies in the rape shield laws despite its acceptance as an enacted law in all the states of US. The critics who seek to criticize the rape shield laws on the reasoning that it somehow violates the constitution propose that the rape shield laws are deficient in providing a fair trial to the defendant, it violates his right to cross-examine the victim or witnesses, it discriminates between sexes, it is an intrusion of the legislature into the judiciary and thus a violation of the doctrine of separation of powers and it is a vague form of law.2 In the forthcoming cases, the questions which arose to prove the constitutional violation of the rape shield laws were repeatedly nullified by the court. In a case, the question arose that whether not allowing the defendant to raise questions about the complainant’s previous sexual conduct is a violation of the defendant’s constitutional due process right to a fair trial. The court, however, argued and rejected the validity of such contention, stating that the said constitutional right does not impel the court to admit all kinds of evidence that would free the defendant from all kinds of obligation and further more evidence relating to sexual past has little probative value.3 In another case the constitutional validity of the rape shield laws was raised with respect to the equal protection clause under the fourteenth amendment. However, the court held in this case that rape victims are not suspect classification under the law and the equal protection clause required that only a rational and reasonable basis for the classification. The rape shield laws were only a legal means to encourage women to report rape and they should not be humiliated on the stand.4 In a case, whether the rape shield laws violated the Confrontation Clause of the Sixth Amendment was raised. The court again stated that the evidence relating to the fact, whether the victim has had sexual intercourse with another person was of low probative value for the case and was thus dismissed.5 Therefore all the cases, where the constitutional validity of the rape shield laws was raised were dismissed. The question is whether past sexual conduct should be inadmissible altogether due to the fact that it is already taken to be a constitutionally valid legislation. In such circumstances, what are the dangers that it may pose to the defendant’s right to plead his innocence with the help of due process right to fair trial. In a criminal case, the issue was whether a female soldier was raped by the defendant. Kelly pleaded that the complainant’s prior sexual conduct with third parties was lewd and sexually provocative. The complainant of this case may be termed as a sexually aggressive or provocative woman. The complainant frequented bars, clubs and parties. If the complainant’s past sexual behavior is taken into consideration in this case, it would be observed, that Kelly acted in a sexually aggressive and provocative manner when she got drunk. She was also heard in the past two years exclaiming to some male soldiers that she was interested to have sex with them. She was also seen hanging over another man openly. Finally, Hubbard another member of Kelly’s unit testified that the complainant had danced in a lewd manner with him also, just before the incident took place in the night in question. Kelly testified in this case that he and complainant went inside a room and there Kelly kissed the woman after she woke up and they engaged in consensual sex, which was contrary to the complainant’s testimony that she raped by Kelly while she got drunk and unconscious in her room without her consent. The Military rape shield laws, which were similar to the Federal rape shield laws, were applied to this case and Kelly was convicted of the offence.6 Taking for granted that past sexual conduct was inadmissible and the conduct of the complainant for the past two years and even at the night the incident took place, can’t there be any presumption or great probability that the accused was in fact innocent. What if the accused was telling the truth and what if the accused was charged for rape even when it was consensual? Looking at the above case by gathering the circumstantial evidence that was presented in this case it can be easily presumed that there is a great probability that the accused was in fact telling the truth and further supported by the fact that there is no direct evidence provided by the complainant in this case that the complainant got raped without her consent. So again the question is raised that whether past sexual conduct will be taken to be inadmissible altogether taking into consideration that women’s dignity and privacy should be protected in courts, so that rape cases do get reported. Isn’t it something unjust to do to the accused given the circumstances of the case? Won’t inadmissibility of past sexual conduct specifically in this case violate the Due process clause or the Equal Protection Clause or the Confrontation clause taking that the accused of this case was probably innocent given the circumstances of this case? It is feared it would. Despite the fact that the trial court held Kelly to be guilty of rape, yet, when the matter moved to the appellate court, Kelly was acquitted. The court reasoned that the accused was not guilty as the evidence tended to show that the accused had a pattern of behavior and which cannot be taken to a series of unrelated incidents.7 In a similar fashion, there may be many rape cases, where there is a huge probability that the accused may have been innocent but falsely convicted due to false accusation made by the complainant. The rape shield laws may have exceptions but there are no definite parameters framed by the legislature to determine the circumstances under which it may be accepted. Mostly the matter lies to be determined at the discretion of the court. Hence, it is can be suggested that suitable amendments need to be made to the rape shield laws to set some parameters and guidelines to determine when such evidence may be accepted taking into consideration that such laws must purport to maintain a balance between the rights of the defendant to plead that he is innocent and the due protection to the victim from any unjust prejudice that she may face, while proving the case. 3. Inadequate protection of defendant’s interests Other than the exceptions to the rape shield laws, there’s no opportunity, which is provided legally to the defendants to prove their innocence, when the only available option to prove their innocence is to go into the past sexual life of the complainant, taking into consideration that such evidence does not unjustly prejudice the privacy or cause undue embarrassment and when the law is deficient to provide such exceptions and left at the discretion of the judiciary to be determined, it can cause problems in some situations, as the defendant may become a plaything of criminal procedure and judicial discretion, though such problems may not occur in all cases. An instance would be that the exception to the prohibition on past sexual conduct for convictions of prostitution appears in one rape statute only. Despite express authorization by the legislatures in this regard, judges in some other jurisdictions, have admitted complainant’s prior prostitution convictions.8 In a particular case, the Supreme Court of Nevada explained the requirement of why prior prostitution convictions should be admitted. Despite the fact that the purpose of the rape shield laws is to protect rape victims from disclosure of intimate details of private lives. However, the court stated that illegal acts of prostitution are not intimate details of private life. This is rather criminal acts of sexual conduct engaged mostly with perfect strangers. Despite the court’s acceptance of evidence relating to previous prostitution convictions there are no direct legislations in this regard in most of the states making its admissibility a matter depending upon the discretion of the courts. Thus, the laws are to be amended to fulfill the courts purpose of reaching the truth. 4. Recent Cases In a recent case, the admissibility of previous sexual conduct of the complainant was in question. In the present case the accused was NBA superstar Kobe Bryant, while the complainant was a nineteen year old hotel desk clerk.9 Despite the protection provided by the rape shield laws, enforced in different jurisdictions to the complainant, in this particular case, the same was outweighed, when the accused was a super star. The rape shield law was outweighed not by the fact that the laws were not enforced but due to enormous publicity of the same through media, websites, newspapers, and even through commodities used daily. This is an instance where the question, whether these laws should remain in force comes into the question because these laws have failed in its purpose, despite proceedings took place as per this laws. The exceptions to the rape shield laws were successfully enforced in this case. The judge allowed accuser’s 72 hour span sexual activity just before her medical examination took place, to be admitted, and also allowed further examination of two witnesses relating to her sexual history. The admissibility of the evidence was, however, proper both as per the laws of Colorado and as per the newly proposed amendment to the rape shield laws as per Anderson.10 Despite the fact that all proceedings took place, as per the Colorado statutes relating to rape shield law, the process failed drastically in achieving its purpose that is protection of the complainant from abuse and embarrassment. This is an exceptional case, as the accused in this case was a super star. Hence, this case serves another suitable example as to why amendments are necessary to protect the interests of both the defendant and the victim in rape and sexual abuse cases. 5. Conclusion The rape shield laws are deficient in some ways and specific amendments have to be brought into the rape shield laws to provide a fair and just decision to the defendant as well as the victim. In the preceding pages of this paper, it is found, how the rape shield laws are vague in different states. The rape shield statutes do not state the guidelines, as to what should be the parameters of the rape shield laws, but rather it seeks to maintain those parameters through judicial discretion. The rape shield laws are found to be constitutionally valid by the court and arguments could not refute it. Though rape shield laws are constitutionally valid, there may be situations, where applying the rape shield laws may violate the constitution and may prove to be totally unfair for the defendant. The exceptions to the rape shield laws often do not serve to protect the interests of the defendant. The rape shield laws often fail to protect the victim in exceptional cases, where high profile is involved. The significance of the finding is primarily to show the deficiencies in the law itself, which causes disharmony between the balance of interests of the complainant and the victim, which the law seeks to maintain. The rape shield laws need to be amended and also considering the prejudices a particular law may prove to have on the defendant should be of primary concern other than protecting the victim herself. References Rape Shield Statutes, http:// www.arte-sana.com/articles/rape shield laws us. Pdf (last visited March 21, 2012). Denise Roman, Under the Rape shield constitutional And Feminist Critiques of Rape Shield Laws, 39 (2011) http:// www. Csw/ucla.edu/publications/newsletters/2010-2011/article-pdfs/RS11_Roman.pdf. People vs Blackburn, 56 Cal. App. 3d 685. Finney vs State, (1979, Ind. App.) 385 NE2d 477. State vs Ryan, (1978) 157 NJ Super 121, 384 A2d 570. U.S. v. Kelly, (N.M.Ct.Crim.App, 1995), 41 M.J. 833. Michelle J. Anderson, From Chastity Requirement to Seculiarity License: Sexual Consent and a New Rape Shield Law 70 WA. L.Rev. 51 (2002 Richard I. Haddad, Shield or Sieve? People v. Bryant and the Rape Shield Law in High-Profile Cases, COLUM. J. L. & PROBS. 185 (2006). Read More