128 U. Pa. L. Rev. 544, 544-549, 550-551 (1980)

In the last few years, forty-six jurisdictions have made efforts to protect rape victims from the humiliation of public disclosure of the details of their prior sexual activities. In most states the legislatures have passed shield laws restricting a criminal defendant's ability to present to the jury evidence of past sexual history. In one instance, the same result has been reached by an appellate court ruling. Late in 1978, the United States Congress followed this trend and enacted rule 412 of the Federal Rules of Evidence. While these laws vary in scope and procedural details, they share the features of declaring an end to the presumptive admissibility of such evidence and of restricting the situations in which a defendant will be allowed to bring the victim's sexual history to the attention of the jury. Almost unanimously, the literature of the last few years has encouraged these laws and attempted to justify any adverse consequences to the defendant by claiming that the state's interest in protecting rape victims is sufficiently important to overcome any constitutional objections. The changing moral climate in this country and the increasing leniency about sexual relationships outside of marriage, it is usually argued, have discredited the old rationale that the unchastity of a woman has a material bearing on whether she has really been raped.

The new laws do not, however, merely end an antiquated rule of evidence; they establish a new rule in some cases as extreme as the old one. Statutes such as rule 412 create a presumption that the sexual history of a rape victim will never be admissible, except when compelled by due process because of overwhelming probative value. It is, of course, difficult to argue with the position that the old rule of automatic admissibility should have been eliminated. It is not as easy to say that it is wise or consistent with the rights of a criminal defendant automatically to prevent introduction of evidence of a rape victim's sexual history.

The premise of the first part of this Article is that evidence of a rape victim's sexual history may be probative of an issue material to determining the guilt of a defendant charged with rape. Later sections of the Article will discuss particular circumstances in which such evidence is relevant and necessary to the effective presentation of the accused's defense. Initially, this Article will evaluate the new rules in light of the sixth amendment rights of a defendant to confront the witnesses against him and to produce witnesses in his favor. An analysis of laws affecting criminal defendants must be approached not from the standpoint of the victim, but from the standpoint of the accused. Whatever indignities are suffered by the complaining witness in any criminal trial, they do not compare with those a convicted defendant must suffer. There is no more serious undertaking of the state than accusing a person of a crime, with the concomitant threat of loss of liberty or life.

We reluctantly conclude that some rape victim shield laws violate the sixth amendment right to defend oneself. In the attempt to protect the sensibilities of rape victims, the defendant's right to present evidence to the jury is infringed. Surely the rights of defendants charged with rape are no less important or protected than the rights of defendants accused of other crimes. To the extent that a defendant in a rape case is categorically prevented from offering types of evidence that other criminal defendants may offer, his sixth amendment rights are violated.


At common law, the rules governing the use of a rape complainant's sexual history provided that such evidence was always admissible. Three elements combined to create the rule of admissibility. The first was the fear of false charges brought by vindictive women. Sir Matthew Hale, Lord Chief Justice of the King's Bench, stated that rape "is an accusation easily to be made ... and harder to be defended by the party accused, tho never so innocent.'' Second was the concept that chastity was a character trait. If a woman could be shown to be unchaste by nature, then it could be inferred that she had consented to sex with the defendant. Third was the belief that premarital sex was immoral. Acts of previous illicit sexual relations, like other acts of moral turpitude, could thus be used to impeach the credibility of the complaining witness in a rape case.

The fear expressed by Sir Matthew Hale, that it is difficult to defend against fabricated rape charges, pervaded the early writings justifying the need for sexual history evidence.

The unchaste (let us call it) mentality finds ... expression in the narration of imaginary sex incidents of which the narrator is the heroine or the victim. On the surface the narration is straightforward and convincing. The real victim, however ... is the innocent man; for the respect and sympathy naturally felt by any tribunal for a wronged female helps to give easy credit to such a plausible tale.

To protect these innocent men, juries were usually instructed to scrutinize closely the testimony of a rape complainant: "Where the complaining witness and the defendant are the only witnesses, a charge of rape is one which, generally speaking, is easily made, and once made, difficult to disprove. Therefore, I charge you that the law requires that you examine the testimony of the prosecuting witness with caution.'' Dean Wigmore went so far as to urge that all women who brought rape charges undergo psychiatric examination before being allowed to testify in order to weed out charges stemming from sexual fantasy, rather than fact.

Whatever the situation may have been in times past, it is difficult to argue today that the danger of false charges is greater for rape than for any other kind of crime. If anything, the statistics show just the opposite. Rape is one of the most underreported crimes. In addition, rape allegations are carefully screened in most instances to assure that only legitimate cases go to trial. For no other category of crime is the scrutiny by the police and prosecutor closer.

Most states today do not have a rule automatically allowing the use in rape trials of testimony about a woman's "character'' for chastity. Not long ago, however, courts reasoned that most women were virtuous by nature and that an unchaste woman must therefore have an unusual character flaw. This character trait had caused her to consent in the past (when, obviously, a "normal'' woman would never have consented) and made it likely that she would consent repeatedly. Because consent was a defense to rape, evidence that was thought to show a propensity towards sexual relations was always admissible to suggest consent in the particular instance. Courts and legislatures have adapted to the times and have realized that a woman who is unchaste--or in modern parlance, who has had extramarital sexual relationships--is no more likely to consent indiscriminately than is a chaste woman.

Another problem that led to dissatisfaction with viewing sexual history as evidence of character was the manner of proof. Character is usually proved by testimony about a person's reputation and less often by opinion testimony or by evidence of specific acts. Thus, in rape cases, the defendant was entitled to introduce testimony about the sexual reputation of the victim and could often have a witness testify to his opinion of the woman's chastity. Even if there is some probative value in showing that a rape victim is casual in her selection of sexual partners, the least accurate way of doing so is by evidence of her reputation or the opinion of one witness perhaps lacking any personal knowledge.

Sensing the inherent weaknesses of relying on the character-evidence rationale for admitting sexual history evidence, some courts attempted to justify it on the ground that it impeached the complainant's credibility. This reasoning assumes that promiscuity is a form of dishonesty, and that, as in the case of other acts affecting honesty, promiscuity lessens the witness's credibility. This effort to justify admitting evidence of sexual history is seriously flawed. First, the cases offering this explanation limited the inference to women. Promiscuous men could not be similarly impeached. Second, only women who brought rape charges were open to this kind of impeachment. Female prosecuting witnesses who charged defendants with other types of crimes, such as robbery, could never be impeached by their prior sexual history....

Yet even as the old laws were premised on the myths of a male-dominated society, the vituperative attacks and much of the resulting legislation are themselves based on an emotional premise: that the rape victim is unfairly subject to a "second rape'' by the criminal justice system. Uniformly, the cry for revision of the rape evidence laws calls for special protections for the rape victim not available to most prosecuting witnesses. Writers have gone so far as to advocate considering a rape victim as a "defendant,'' entitled to the same protections as defendants charged with crimes.

These authors are undoubtedly correct that the old laws that singled out rape cases for special evidentiary rules were unwarranted. This thesis, however, cuts both ways: just as testimony should not automatically be admissible in rape cases, it should not automatically be inadmissible solely because a trial involves rape instead of some other crime affecting the same people. A basic premise of evidentiary rules is that they focus on issues common to all trials and do not develop differently for each substantive crime and civil cause of action.


Much of the debate about rape victim shield laws has centered on the attempt to define precisely those situations in which fairness and due process demand that the defendant be allowed to introduce sexual history evidence. Professor Berger has written a comprehensive article defining seven particular types of evidence that, subject to judicial findings of relevance and fairness, the defendant ought to be allowed to introduce.(1)41 Other writers have argued that a man accused of rape may delve into the victim's sexual history in far fewer instances.(2)42 ...


A state is constitutionally prohibited from enacting a rape victim shield law that limits a defendant's ability to introduce otherwise admissible evidence. The sixth amendment rights of confrontation and compulsory process guarantee exactly this: no person accused of a crime may be denied the right to introduce evidence when the probative value outweighs the prejudicial effect. The state and federal governments may not legislate to alter the rules of evidence so as to place unusual and new burdens on the accused's ability to defend himself. Testing rape victim shield laws against this federal constitutional standard finds many of them defective.

Because sexual history evidence is potentially relevant in some rape cases, those statutes that contain absolute prohibitions, whether against all such evidence or only certain classes or uses of evidence, certainly cannot be reconciled with the sixth amendment. Shield laws also run afoul of the Constitution when they alter the traditional standard for the admissibility of evidence. The sixth amendment guarantees incorporate a federal constitutional standard for the admission and exclusion of evidence offered by the accused, and the states cannot, therefore, require the evidence offered by rape defendants to satisfy a stricter standard.

There is, however, nothing wrong with requiring that the relevance of sexual history evidence be determined before trial, by employing the traditional standard of probative value weighed against prejudicial effect. To the extent that shield statutes limit the accused from unfairly attacking the morality of a rape victim, they are unobjectionable. To the extent that such statutes require that rape victims be treated no differently from other witnesses and that sexual conduct testimony be treated the same as any other evidence, they are certainly valid. A statute that seeks to correct past abuses and to change the old rule automatically admitting evidence of the rape victim's morality is laudatory. No valid constitutional reason justifies singling out rape complainants for different treatment. But fairness to rape victims and control over potentially prejudicial testimony can also be accomplished by a pretrial determination of the relevance of sexual history evidence. A valid shield law should thus read:

Evidence of specific instances of the victim's sexual conduct, opinion evidence of the victim's sexual conduct, and reputation evidence of the victim's sexual conduct may be admitted ... only if, and only to the extent that, the judge finds that the evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

If the defendant proposes to ask any question concerning [such evidence], either by direct examination or cross-examination of any witness, the defendant must inform the court out of the hearing of the jury prior to asking any such question. After this notice, the court shall conduct an in camera hearing ... to determine whether the proposed evidence is admissible.

Times change, and the prevailing morality changes with them. The move for equality of women has made us aware of the abuse of rape victims in the criminal justice system. Although steps have appropriately been taken towards protecting them, they have in many instances come at the expense of rights guaranteed the accused. While a rape defendant should have no greater right to present evidence than other defendants and should not be allowed to sidetrack the search for truth by introducing irrelevant testimony about the sexual mores of the complainant, the sixth amendment guarantees that he will not be prevented from eliciting testimony relevant to his defense. Shield laws must be tested against his established rights to confront his accusers and to present his own defense. If these laws are found wanting, they must be struck down and rewritten to assure that the desire to protect rape victims does not unconstitutionally hinder the ability of the accused to defend himself.

As the questions in the text introducing this section suggest, we believe that the special protection afforded victims in sexual assault cases to prevent evidence of their prior sexual activities cannot always be justified solely on relevance grounds, at least as that term is defined in Rule 401. Nor can these special protections be justified by the familiar prejudice considerations of Rules 403, 404, 405, or 609, because these rules are concerned primarily with prejudice to the accused, not to witnesses against the accused. Possibly, exclusion of relevant sexual history could be justified in some cases on grounds that evidence of the victim's prior sexual history (1) misleads the jury, (2) confuses the issues, or (3) wastes time--other 403 grounds for exclusion of relevant evidence. But exclusion on these bases would be on a case-by-case, not a per se, basis.

The rape-victim shield law is predicated on assertions about relevance. There is some tendency for people to think about the concept of relevance as logical and objective. It is important, however, to recognize that concepts of relevance are very much dependent on one's point of view. See Problem II-4 (Dr. Who Visits Old Salem). The law of rape has unquestionably been dominated by conceptions of relevance derived from centuries of development by male judges. The rape-victim shield laws assert a different concept of relevance, stemming from a different point of view. It is precisely this difference in point of view that makes discussion of the problem in this section both intense and interesting.

The rape-victim shield statutes, including Rule 412, which was enacted after the adoption of the Federal Rules in 1975, can also be thought of as creating a privilege for the victims of sexual assaults. As with other privileges (see Chapter VII below), the sexual assault victim's privilege may work to exclude evidence that is relevant. And, again like other privileges, the sexual assault victim's privilege can be conceptualized in terms of privacy or instrumental utilitarianism.

The rape-victim shield statutes are strongly grounded in privacy and respect for the integrity of the victim. Details of a person's sexual life lie close to the heart of the privacy considerations articulated by Krattenmaker and Westin. See pages 692-694. The statutes also are strongly grounded on utilitarian objectives: Without the privilege, victims will be hesitant to come forward and press charges, or guilty defendants will go unpunished because they succeed in playing on the jury's prejudices by putting the victim on trial. In either case, dangerous criminals will not be brought to justice, which endangers society.

These are important considerations that do not disappear whatever one's view of the relevancy of this evidence. But the question then becomes, are these justifications powerful enough to overcome a defendant's right to present relevant evidence in his defense and to confront the witnesses against him?

Had Rule 412 only eliminated use of propensity logic as it related to actions of a rape victim, the statute would have created no serious constitutional problems. Propensity logic--that is, the use of character to prove action on a specific occasion in conformity with character--is pretty thin stuff. Its marginal relevance partially accounts for the limitations on its use in Rules 404(a) and 405. By contrast, Rule 404(b) emphasizes that there are situations in which proof of specific instances of conduct may be highly relevant to some material issue although the proof may also show character. Rule 404(b) deals with situations in which the logical line of inference does not go through character.

However, by purporting to bar evidence of past instances of the victim's sexual behavior for virtually all purposes, Rule 412 went well beyond the elimination of propensity logic. Rule 412 eliminated as well virtually all relevant uses of specific instances of the victim's past sexual behavior, even though the inference to be drawn from proof of such instances bears on a material issue without explicitly going through character. In this sense Rule 412 may be thought of as having eliminated 404(b)-type uses of past conduct as well as 404(a)-type uses. Defendants may contend that these uses may be highly relevant in a particular case, and therefore their elimination raises serious questions of violation of the defendant's right to present his defense. Compare the statutory proposal of Professor Berger (note 41 at page 326). She articulates a number of situations in which past specific instances of the sexual conduct of the victim would be highly relevant. Unlike Rule 404(b), however, Professor Berger's statute would provide a limited and exclusive number of affirmative justifications for admissibility rather than (like Rule 404(b)) a series of examples in which a general rule of exclusion does not logically apply.

Professor Althouse is critical of Tanford and Bocchino's analysis and of the absence of balancing material in the previous edition of this casebook. She states:

Even if rights trump competing concerns, there remains a preliminary question as to the content of those rights. Moreover, one could question the meaning given to rights, perhaps on the ground that the rights that law has embraced over the years express the concerns of men. By labeling women's concerns mere "indignities'' or offenses to "sensibilities'' and men's concerns "rights,'' the article can sweep women's concerns aside with the seemingly neutral principle that rights must prevail.

The article excerpt also asserts that the defendant's perspective "must'' be taken, but this requirement lies unexamined. In the ordinary development of the meaning of rights, the needs of the criminal justice system, the interests of victims, and the values of society play a substantial role. Moreover, many have argued that the law of rape has taken the male perspective to an inordinate degree and thus reflects a deep-seated antagonism to women.

See Althouse, Nw. U.L. Rev., supra, citing, among others, S. Estrich, Real Rape; C. MacKinnon, Toward a Feminist Theory of the State (1989); and S. Brownmiller, Against our Will (1975).

Susan Brownmiller studies male sexual violence against females regardless of age or sexual orientation from prehistoric and biblical times through today; this definitive treatment examines violence in war, riots, and pogroms; religious, racial, and ethnic persecutions; slavery, gangs, and prison; and in myth, fantasy, and even heroic glorification. Brownmiller's central thesis: "From prehistoric times to the present ... rape has played a critical function. It is nothing more or less than a conscious process of intimidation by which all men keep all women in a state of fear.'' Even if one does not accept the sweeping nature of Brownmiller's conclusion, she builds a powerful case based on massive and wide-ranging accounts and data of the systematized use of rape as a tool of intimidation, control, and power by men against women. Seen in this light, supposedly "neutral'' rules of evidence, as applied in the antiseptic atmosphere of the halls of justice, take on a new hue.

In Sexual Violence: Our War Against Rape (1993), Linda A. Fairstein, an assistant district attorney in New York and for over 15 years the director of that city's Sex Crimes Prosecution Unit, recounts numerous successful, and some unsuccessful, prosecutions for rape. Fairstein points out that the success of her unit was dramatically increased by the elimination of the corroboration requirement in New York and by the enactment of a rape-victim's shield law. Fairstein states:

Allowing unlimited questioning about a victim's proper sexual history worked against her in at least two ways. At trial in the courtroom, it diverted the jury from the issue of the defendant's guilt by trying the witness for her "promiscuity.'' And even worse, it worked to keep many survivors from participating in the legal process and subjecting themselves to debasing and humiliating treatment. Before the introduction of the so-called rape shield laws, then, many witnesses simply refused to expose themselves to such mistreatment.

Id. at 122. According to Fairstein, even the threat of the use of a victim's prior sexual history can be seen as a tool that permits rape to go unpunished. Thus, from Brownmiller's perspective, evidence rules that permit such inquiry can be seen as part of a system of domination, intimidation, and condoned violence by men against women.

With these considerations in mind, is it so clear, as Tanford and Bocchino state, that the exclusion of evidence by rape-shield statutes that do not apply to all witnesses violates the Constitution?

1. 41. (1) Evidence of the complainant's sexual conduct with the defendant; (2) evidence of specific instances of conduct to show that someone other than the accused caused the physical condition (semen, pregnancy, disease) allegedly arising from the act; (3) evidence of a distinctive pattern of conduct closely resembling the defendant's version of the encounter, to prove consent; (4) evidence of prior sexual conduct known to the defendant (presumably by reputation) tending to prove that he believed complainant was consenting; (5) evidence showing a motive to fabricate the charge; (6) evidence that rebuts proof offered by the state on victim's sexual conduct; and (7) evidence as the basis for expert testimony that the complainant fantasized the act. Berger, [Man's Trial, Woman's Tribulation: Rape Cases in the Courtroom, 77 Colum. L. Rev. 90,] 98-99 [1977].

2. 42. E.g., Ordover, [Admissibility of Patterns of Similar Sexual Conduct: The Unlamented Death of Character for Chastity, 63 Cornell L. Rev. 90, 110-118 (1979)] (distinctive patterns of behavior under similar circumstances); Note, California Rape Evidence Reform: An Analysis of Senate Bill 1678, 26 Hastings L.J. 1551, 1572 (1975) (only when victim's testimony is sole incriminating evidence); [Evelyn Sroufe, Evidence--Admissibility of the Victim's Past Sexual Behavior Under Washington's Rape Evidence Law,] 52 Wash L. Rev. 1011, 1023, 1027-33 (1977) (bias and relations with the defendant only).

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