NCJ Number
41239
Journal
Columbia Law Review Volume: 77 Issue: 1 Dated: (JANUARY 1977) Pages: 1-103
Date Published
1977
Length
103 pages
Annotation
THE ODDITIES OF THE LAW OF RAPE - PROCEDURAL, EVIDENTIARY, AND SUBSTANTIVE - HAVE MARKED IT OUT FOR SPECIAL KINDS OF CRITICISM AND UNIQUELY MOTIVATED CALLS FOR CHANGE.
Abstract
THE OVERALL PURPOSE OF THESE REFORMS IS TO TREAT RAPE MORE LIKE OTHER OFFENSES. A MAJOR MOTIF IS THAT RAPE PROSECUTIONS SHOULD CONCENTRATE ON THE DEFENDANT'S CONDUCT, INQUIRING INTO THE ACTIONS OF THE COMPLAINING WITNESS ONLY WHEN FAIRNESS SO REQUIRES. THIS STUDY DEALS WITH THE MOST EGREGIOUS DEPARTURE FROM THAT NORM - THE RAPE TRIAL'S TRADITIONAL FOCUS ON THE SEXUAL HISTORY OF THE COMPLAINANT. IN ANALYZING THIS PROBLEM, THE AUTHOR FIRST EXAMINES THE MORE CONTROVERSIAL PURPOSES FOR WHICH SUCH PROOF OSTENSIBLY IS OFFERED - TO EVINCE THE COMPLAINANT'S CONSENT, MISTAKE, OR BIAS IN RELATION TO THE ACT. ATTENTION IS THEN FOCUSED ON A DETAILED EXAMINATION OF THE RAPE STATUTES THEMSELVES, BOTH THE MORE TRADITIONAL LAWS AND REFORM LEGISLATION. THE ISSUES ADDRESSED INCLUDE THE AMOUNT OF PROCESS 'DUE' THE DEFENDANT, THE PROTECTIONS OWED THE VICTIM, AND THE FAIREST AND MOST WORKABLE BALANCE, WITHIN CONSTITUTIONAL BOUNDS, AMONG THE IMPORTANT OPPOSING VALUES COMPETING FOR LEGAL RECOGNITION. CONFLICTS BETWEEN THE VICTIM'S POSSIBLE SEXUAL 'PRIVACY' AND EQUAL PROTECTION CLAIMS ON THE ONE HAND AND THE ACCUSED'S RIGHT TO CONFRONT WITNESSES AGAINST HIM AND HIS PREROGATIVE OF OFFERING EVIDENCE IN HIS FAVOR ON THE OTHER ARE EXPLORED. IT IS SUGGESTED THAT NEW RAPE SHIELD STATUTES, WHICH CONTROL OR PROHIBIT THE USE OF EVIDENCE REGARDING THE RAPE COMPLAINANT'S CHASTITY, OFTTIMES MERELY SHIFT THE WEIGHT OF OPPRESSION FROM THE VICTIMS ONTO THE HAPLESS DEFENDANTS. POSSIBLE ALTERNATIVE OR SUPPLEMENTARY MEANS OF DEFENDING THE VICTIM'S INTERESTS AT TRIAL ARE DISCUSSED. THEY INCLUDE PRETRIAL EVIDENTIARY HEARINGS, PRIVATE, INDEPENDENT COUNSEL (IN ADDITION TO THE PUBLIC PROSECUTOR) FOR THE VICTIM, CLOSING THE TRIAL TO THE GENERAL PUBLIC, AND GIVING JURIES SPECIAL CAUTIONARY INSTRUCTIONS. A MODEL RAPE SHIELD LAW IS PROPOSED WHICH OUTLINES THE LIMITS ON ADMISSIBILITY OF EVIDENCE OF SEXUAL CONDUCT IN PROSECUTIONS FOR THE CRIME OF RAPE, AS WELL AS THE PROCEDURE FOR DETERMINING ADMISSIBILITY. DATA ON EXISTING STATE RAPE SHIELD STATUTES IS APPENDED. ...ELW