The Rape Shield Law - Research Proposal Example

?Research Proposal A. ment of topic The topic that this research intends to explore is the rape shield law in the United s and the degree to which it serves the over-all interests of justice. Rape shield laws are laws that limit the defendant’s ability to cross-examine the complainant on prior sexual history and admit evidence of a similar nature. The express intent of these laws is to protect rape victims from being humiliated on the stand by defense attorneys and protect them from further emotional damage and scrutiny. It would, feminist advocates are wont to argue, be akin to subjecting them to trial as though they were the one accused and under scrutiny. To quote from Rudstein, “are obstacles to convictions of rapists because juries presented with evidence concerning a complainant's past sexual history make use of such information to form a moral judgment of her character and then are likely to be sympathetic to the assailant1.” It also discourages rape victims from going to the police, for fear that their dirty laundry may be washed for all the world to see. As a net consequence of this, there would be low convictions for rape and many rapists would not be made accountable for their crimes. This becomes especially true when a majority of all rapes committed are acquaintance rape2, where in all likelihood the rapist would be able to present some form of evidence or information about the sexual past of the victim by virtue of having moved in the same circles. The first rape shield law in the United States was passed in Michigan in 1974, and other states followed suit. It mainly arose from the lobbying of feminists who believed – and rightly so – that rape was a power issue and that the way it is being treated and dealt with in the courts of law reinforced the hierarchical gender relations. Allowing evidence of sexual history perpetuates stereotypes of women, e.g., women who slept around cannot be raped, women with a lot of partners must have “asked for it”, prostitutes can never secure a conviction for rape against a man who sexually abused her. In fact, there have been studies showing that there is a “credibility gap”3 between men and women in the court room. Haddad4 divided rape shield laws in the United States in roughly four categories. According to him: These laws can be roughly divided into four categories, distinguishable by the basis and form of their exceptions: (1) “legislated exceptions” laws, which contain general prohibitions on evidence of prior sexual conduct, subject to at least one legislated exception; (2) “constitutional catch-all” laws, which, in addition to prohibiting evidence of prior sexual conduct, subject to at least one legislated exception, contain an explicit exception allowing the admission of any evidence that, if excluded, would infringe upon the rights guaranteed to a defendant by the federal Constitution; (3) “judicial discretion” laws, which, instead of including legislated exceptions, simply grant to judges the broad discretion to admit or bar evidence of a woman’s sexual history; and (4) “evidentiary purpose” laws, which determine the admissibility of a woman’s sexual history based on the purpose for which the evidence is offered at trial. The issue of rape shield has gained contemporary platform once more in the case of Kobe Bryant, where the judge ruled that the victim’s sexual activity seventy two hours before she was subjected to medical examination in relation to the rape charge. Many legal experts believed that this dealt a crushing blow to the prosecution of the case and led to the eventual dismissal of the charges against Kobe Bryant. B. Statement of thesis My thesis intends to explore the possible inconsistencies between the rape shield law and the right of the accused to due process. The core of my argument is that the state policy to spare a survivor of rape from the possibility of being humiliated on the stand should not be held in higher regard than the right of an accused to be able to present all possible evidence that he can use in his favor. It cannot after all be gainsaid that due process is a fundamental principle in the criminal justice system. It ensures that the rights of the accused are adequately protected, that evidence to convict him or her is evidence obtained without force or duress or violation of law, and that the quest for the rule of law and order does not impinge on the right of the individual to a fair trial. At the same time, there is no doubt justification for protecting a victim of rape from further social stigma and embarrassment. The research question I intend to ask is as follows: 1. How should jurisprudence resolve the tensions between the right of the rape victim to be protected from exposure of sexual history and the right of the accused to present evidence on his behalf? 2. I would like to embark on this research because I have been a rape victim in the past and I want to objectively assess how the law and the legal system perceive the rights of rape victims vis a vis other competing rights. C. How I intend to conduct the study I intend to conduct the study by providing a comparison of the competing values protected by the rape shield law and the due process guarantees of the accused. Feminists who have called for the reform of rape law have demonstrated that “the law of rape historically has regulated competing male interests in controlling sexual access to females, rather than protecting women’s interest in controlling their own bodies and sexuality”5. This is a fascinating proposition, and jibes with the conflict theory of criminal justice, which looks as criminal laws as having an agenda supportive of a dominant class. In the case of rape, the dominant class might be the male gender and rape laws articulate a male view of the world6. This is further reaffirmed by other scholars. According to Schafran7: (I)n the law, men’s life experience has been treated as the norm. For example, rape laws are a codification of men’s fears of false accusations…. The “maleness” of law is expressed in many different ways – among them, laws and regulations; the cases that lawyers take or refuse; what is taught in law schools; what is taught in law schools; and how judges, juries and other decision makers interpret, apply and enforce the laws – and in many more areas of the law than is usually realized. A good example of this is the way rape cases are prosecuted and the evidence required to convict a rapist. Because rape often takes place in confined and private places, there is a greater probability in rape cases than in other criminal cases that there would be no other witness but the victim himself or herself to testify to the veracity of the claims. Hence, there is a greater deal of subjectivity and in many cases, the victim herself feels as if she is put on trial – with the truth and acceptability of her testimony dependent on how closely she resembles society’s perception of how a woman should be and behave, and how she fits into her “assigned gender role”. To understand this notion of assigned gender roles, it is imperative to consider the notion of gender as social construct and see how men and women are assigned different social roles and are treated or considered differently because of perceived biological differences. As expressed by Lorber8 – Western society’s values legitimate gendering by claiming that it all comes from physiology – female and male procreative differences. But gender and sex are not equivalent, and gender as a social construction does not flow automatically from genitalia and reproductive organs, the main physiological differences of females and males. In the construction of ascribed social statuses, physiological differences such as sex, stage of development, color of skin, and size are crude markers. And yet, unfortunately, it is these crude markers that too often determine the outcome of rape trials. If a woman is tomboyish, unattractive, or in any other sense, short of the acceptable standard of “femaleness”, such “condition” has tended to cast doubt on the validity of the rape case – again looking at rape through the vantage point of the male. Only an attractive woman can arouse a man’s sexual libido, the logic might go. Yet another example is the persist notion that rape must be accompanied by physical force or violence, e.g., there must be signs of struggle. Not only is this wrong from a legal perspective, because it is blind to the many other ways that a women might be compelled to have sex against her will even without the use of brute force (e.g., blackmail), it also frames the issue of rape simply as an issue of physical violence, no different from other cases of physical assault. This fails to account for the power relations embedded within a crime of rape. Says Roberts, “The greatest challenge to feminist reformers has been crafting a legal remedy for this political aspect of rape’s injury to women – one that accounts for rape’s violation of both women’s bodies and humanity, and that grasps how rape is both criminal and derived from ordinary relations between men and women.9” However, there is also persuasive jurisprudence and legal analysis supporting the right of the accused to a present evidence in his or her favour. During the early days, assertions in favour of the right of the accused to present evidence were not rooted in constitutional principles of due process. Procedural grounds were cited in, for example, the case of Crawford v. United States10. From there, the right to be heard and to present evidence gained traction and such right had been increasingly characterized by the trial courts and affirmed by the Supreme Court as a fundamental right. According, however, to McManus11, the beginnings of the case law on this principle were minor steps because the factual antecedents of the early cases involved outright denial of hearings for the accused and there can be no escaping the conclusion that indeed, the right of the accused to be heard and to due process had been violated. It was only in the 1970s when a decision came about that clarified the right to a defense doctrine in cases involving only partial exclusions of evidence. McManus’s description of the case is useful: In Webb v Texas, the Court heard a case involving a claim that the defendant’s due process rights were violated when the trial judge harassed and threatened the defendant’s only witness to the point that the witness refused to testify. The Court overturned the defendant’s conviction on the grounds that the judge’s actions violated the defendant’s due process right to present a defense. The decision was groundbreaking in the jurisprudence of the right to present a defense because the Court’s reasoning relied on the Due Process clause and not on the Compulsory Process Clause of the Sixth Amendment as has been the trend.12 A few years after Webb v. Texas, came the important case of Chambers v. Mississippi, which has been described by Churchwell as a turning point in the due process right of an accused in a criminal proceeding to present evidence for his or her defense. In this case, the Court held that Mississippi’s voucher and hearsay rules conflicted with the right of the accused to present evidence, and the accused’s right should prevail over the state and its powers, consistent with the Due Process clause in the United States Constitution. After the case of Chambers came the case of Crane v. Kentucky,13 which had to do with a minor defendant who alleged that he had been detained in a room without windows, was not allowed to call his mother, and had been forced relentlessly by agents of the state to confess. As a result of this, the defense argues, his confession had been ‘forced’. The court held that considering that the defendant’s defense was the assertion that his confession was coerced, it was “plain that introducing evidence of the physical circumstances that yielded the confession was all but indispensable to any chance of it succeeding.” The Court likewise held that “Whether rooted directly in the Due Process clause of the Fourteenth Amendment... or in the Compulsory Process or Confrontation clauses of the Sixth Amendment, the Constitution guarantees criminal defendants a ‘meaningful opportunity to present a complete defense’.” This principle was a tight-clad affirmation the doctrine in the case of California v. Trombetta14 where, while the Court held that states have no obligation to preserve evidence of the defense that could only potentially be important, it also stated that “(u)nder the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must comport with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that criminal defendants be afforded a meaningful opportunity to present a complete defense.” Reviewing the cases that followed tends to demonstrate the robust character of the right to present evidence. Courts had been traditionally more inclined to uphold this right than to strike it down. McManus summarizes cogently this jurisprudential trajectory, to wit: In sum, these decisions lead to two concrete conclusions regarding the right to present a defense. First, courts acknowledge that the right to present a defense exists under the Due Process Clause of the Fourteenth Amendment. Second, the proper standard of inquiry is to examine the rationale behind the evidentiary exclusion and to determine if those reasons are substantial enough to justify an infringement on the defendant’s right to present a defense. Important considerations in this standard of inquiry include the relevance and reliability of the evidence in question.15 D. Conclusion My personal interest in this subject matter is the result of a prior experience with rape and my desire to see the issue from the sterile perspective of the legal system. In the end what I wish to ferret out is how the law addresses the tensions between seemingly competing values and come up with a framework that is fair to all concerned. Citations Katharine Bartlett, Feminist Legal Methods, Harv. L. Review, 829 (1990) Richard Haddad, Shield or Sieve - People v. Bryant and the Rape Shield Law in High-Profile Cases, 39 Colum. J.L. & Soc. Probs. 185 (2005-2006)  Judith Lorber. Paradoxes of Gender. New Haven: Yale University Press, 1995 Robert McManus, Montana v. Egelhoff: Voluntary Intoxication, Morality and the Constitution. American University Law Review, 45: 1245 (1995) Dorothy Roberts. Rape, Violence and Women’s Autonomy. Chicago-Kent Law Review. 69. 359-388. (1993) David S. Rudstein, Rape Shield Laws: Some Constitutional Problems, 18 Wm. & Mary L. Rev. 1 (1976) Joel Samaha, Criminal Law, 10th ed. (2010) Lynn Schafran, L. Is the Law Male? Let Me Count the Ways. Chicago-Kent Law Review. 69. 397-414. (1993) Lynn Schafran, Credibility in the Courts: Why is there a Gender Gap? 34 Judges’ J, Winter 1995. Read More