Monday, August 31, 2009

If they weren't guilty, they wouldn't be suspects.

They call them "rape shield" laws, and for those who aren't old enough to remember, they came about because women finally had enough social and political clout to convince legislators that "she was asking for it when she dressed that way" shouldn't be a defense to a rape charge. The idea, as those old enough to remember will tell you, is that one reason women wouldn't report rape, and wouldn't pursue rape charges when they did, is that they ended up getting victimized twice - first by the rapist, then by the legal system and, in particular, the defense counsel that derided them and put them on trial, parading their behavior - especially their sexual behavior - in open court.*

"The bitch deserved it" is deeply offensive as a defense, after all. But it was also common.

So they enacted these laws that said, well, here's Ohio's which is fairly typical:
Evidence of specific instances of the victim’s sexual activity, opinion evidence of the victim’s sexual activity, and reputation evidence of the victim’s sexual activity shall not be admitted under this section unless it involves evidence of the origin of semen, pregnancy, or disease, or the victim’s past sexual activity with the offender, and only to the extent that the court 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.
As the Ohio Supreme Court explained forty years ago,
First, by guarding the complainant's sexual privacy and protecting her from undue harassment, the law discourages the tendency in rape cases to try the victim rather than the defendant. In line with this, the law may encourage the reporting of rape, thus aiding crime prevention. Finally, by excluding evidence that is unduly inflammatory and prejudicial, while being only marginally probative, the statute is intended to aid in the truth-finding process.
Noble ends, no doubt. But as we were taught back in second grade, the ends don't justify the means. (Unless you're Dick Cheney or John Yoo trying to explain that torture is a fine and noble endeavor, but I digress.) There are two basic problems with these laws: They prohibit too much, at least as they're applied, and they assume too much.

They prohibit too much because the defense of "she'll sleep with anyone, and I can prove it" really is relevant to the question of whether she's telling the truth when she says "I wouldn't sleep with him willingly." Similarly, that the child was sexually molested by another person the year before provides an alternative explanation for how the child might know what sexual molestation involves. The law prohibits a jury from learning these things.

They assume too much because they presume the accuser to have been, in fact, assaulted. The Ohio statute, like most (if not all), doesn't speak of the accuser but of the "victim." Of course, if the defendant is guilty, then any defense is a sham. And it might subject the victim to further abuse, which would surely be unfair. On the other hand, if the charges aren't true, there is no victim to be further abused. Can't be so. The legislature has already spoken: Guilty as charged.

The essence of the Sixth Amendment is that accused has a right to present a defense. In Washington v. Texas, for instance, the Supreme Court said
The right to offer the testimony of witnesses and to compel their attendance, if necessary, is in plain terms the right to present the defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it may decide where the truth lies. Just as an accused has the right to confront the prosecution’s witnesses for the purpose of challenging their testimony, he has the right to present his own witnesses to establish a defense.

And if there is any doubt that Washington means what it says, the Court has repeatedly made clear in recent years, the Sixth Amendment means that there is a right to confront witnesses and challenge the government's version of the facts. See, for instance, Lilly v. Virginia and Crawford v. Washington and Melendez-Diaz v. Massachusetts.

And then Jonathan Turley reports on the Thomas Gravely whose lawyer, in closing argument, well, here's how the Charleston Daily Mail reports it:

Ed ReBrook, Gravely's defense attorney, called no witnesses. But he summed up his case in a dramatic closing argument to jurors during which he called the victims "tramps" and "whores."

"You cannot rape the willing," ReBrook said. "They got in those automobiles with the intention of having sex for money.

"I would be horrified if any of the women in my life were raped, but I'm talking about decent, honorable women," ReBrook said, and then dramatically raised his voice. "Not whores who have sex with many, many men for money."

Assistant Prosecutor Fred Giggenbach immediately asked Kanawha Circuit Judge Tod Kaufman to stop ReBrook, but he did not.

"They are whores," ReBrook persisted. "That is a perfectly usable word in the English language.

"Finding this man guilty of rape lessens the dignity of every other woman," ReBrook said. "What they have done is turn sex into something disgusting.

"They are not like your wife, your girlfriend or your daughter," he said. "They are street tramps. And what happened to them was, at least in part, their fault.

Of course, it's complicated because Gravely's victims were, in fact, prostitutes and that's how he got to them. But the defense - it's OK to rape whores - that's the real point of the rape shield law. And the law doesn' cover it.

Most criminal laws and procedures are enacted with good intent. We want to protect the innocent and prosecute the guilty, to condemn what should be condemned, to feel safe and actually be safe,** to ensure fairness for all. But good intent doesn't make good law.

The law that says I can't mount a defense that would impugn the integrity of the person accusing me of a crime may have been enacted with the best of intentions. But it's bad law.


*For a contemporary variation on the theme, consider the case of the woman raped at gunpoint in the garage of a Connecticut Marriott while her children looked on. After the rapist entered a guilty plea and was sentenced to 20 years in prison, the woman sued Marriott claiming that their negligence in policing their property led to her rape. Marriott's defense, to great public outrage, included the assertion that it was her fault for not being more careful. See, e.g., here.

**Once, when I was speaking about post-9/11 heightened security procedures at airports and how they don't make us any safer, I was asked in all seriousness by a lawyer in the audience what I would replace those procedures with that would make him feel safe on an airplane. I said (more politely than this) that there was probably nothing I could do to improve his mental health.


  1. Fortunately, the Kansas rape shield statute is a procedural statute only. It does not independently (I cannot type that word to save my life) bar evidence. It simply requires the defense to file a motion in limine. If the defense intends to introduce any evidence about the alleged victim's sexual history, the defense must present that evidence to the court at least 7 days pre-trial to have an assessment of the evidence's relevance outside the presence of the jury.

    Unfortunately, most of the prosecutors, trial courts, and far too many defense attorneys in the state read the statute as creating a substantive limit on evidence.

  2. Michigan's rape shield law has caselaw that makes an exception for certain instances, though unfortunately, that didn't stop one court from ignoring that and keeping out of evidence an alleged victim's prior instance of sexual assault upon a child. Fortunately, the appeals court corrected that, but I can't say that this always gets caught.