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On The Rape Shield Law

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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 gap3 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