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Reassessment and Redefinition of Rape Shield Laws

NCJ Number
Ohio State Law Journal Volume: 50 Issue: 4 Dated: (1989) Pages: 1245-1274
F Tuerkheimer
Date Published
30 pages
Rape shield laws have been passed by the Federal Government and 48 States as a means of limiting cross- examination regarding a complaining witness's sexual past. This article examines the different type of rape shield laws that have been passed, explores the kinds of problems that have arisen under them, and proposes a solution to some of those problems.
Rape shield laws are generally divided into four categories: the Michigan, Arkansas, California, and Federal approaches. The general justifications offered for rape shield laws have included the harassment and humiliation of the victim, exclusion of irrelevant evidence, need to keep the jury focused, and furtherance of effective law enforcement by ensuring victim cooperation. These justifications combine three different evidentiary concepts: relevance, relevance versus counterweights, and rape shield laws as laws of privilege. Some problems that have arisen in connection with rape shield laws include constitutionality issues, reputation evidence, and rebuttal proof. This author proposes that a privilege be enacted, according to which evidence of prior sexual conduct by a complaining witness in a sexual assault prosecution would be admissible only if the defendant's constitutional rights were at stake. The witness would be allowed to participate in evidentiary questions arising under this rule and could appeal an interlocutory order overruling the claim of privilege. 164 notes


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