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Toward a Consistent Recognition of the Forbidden Inference: The Illinois Rape Shield Statute

NCJ Number
Journal of Criminal Law and Criminology Volume: 83 Issue: 2 Dated: (Summer 1992) Pages: 395-436
D Ellis
Date Published
42 pages
Rape shield legislation has significantly curbed the often brutal treatment complainants receive at the hands of defense counsel, but it has become clear with the Illinois rape shield statute that evidence is sometimes required regarding the alleged victim's past sexual behavior.
The Illinois rape shield statute presumes that any evidence of the complainant's past sexual behavior is inadmissible, except when that activity involved the accused. The statute embraces three fundamental goals: to protect the complainant from being harassed or humiliated with unreliable evidence; to promote effective law enforcement by encouraging women to report sexual offenses; and to keep the sexual offense trial focused only on relevant issues. Experience in applying the Illinois rape shield statute shows that, in order to distinguish between valid and invalid uses of past sexual conduct evidence, the legal system must acknowledge the evil to be eradicated by generally prohibiting such evidence. The law must invalidate the theory that a woman's past sexual behavior indicates her likelihood of consenting to sexual activity with the defendant. The only way the law can reject the propensity inference is to deny it whenever it arises, whether offered to suggest the complainant's consent or nonconsent. Anything less than a consistent application of this principle will distort the truth finding process and continue to propagate unreliable myths about women. The Illinois rape shield statute is assessed in relation to proof of alternative source of physical condition, proof of motive to fabricate, proof of alternative source of experiential knowledge of sexual conduct, proof of consent, proof of virginity, proof of sexual orientation, evidence of prostitution, and proof of a pattern in the complainant's sexual behavior. 222 footnotes