NCJ Number
96468
Journal
University of Pittsburg Law Review Volume: 44 Issue: 4 Dated: (Summer 1983) Pages: 955-975
Date Published
1983
Length
21 pages
Annotation
The rules of evidence peculiar to the crime of rape in Pennsylvania are examined, and reform undertaken in recent years is highlighted. Three pertinent code sections of Pennsylvania's law are evaluated with respect to the goals of according rape offenses the same treatment as other crimes and shifting the focus from victim to defendant.
Abstract
From 1973 to 1976, Pennsylvania's Rape Shield Law was patterned closely after the Model Penal Code; proof that the victim had engaged in sexual relations with others could be raised as a defense to charges of corruption of minors and indecent assault. However, since the enactment of Crimes Code section 3104(a), evidence of specific instances of the victim's past sexual conduct is not admissible except where consent is at issue and where such evidence is otherwise admissible, subject to the rules of evidence. Constitutional challenges to section 3104 on due process and fifth amendment grounds have been unsuccessful. However, there is little agreement on the question of when consent is 'at issue' and when evidence of prior sexual conduct is admissible. The Pennsylvania Superior Court's decisions in three cases -- Majorana, Duncan, and Folino -- illustrate how section 3104 has operated to exclude potentially probative and exculpatory evidence that the defendant seeks to offer. Moreover, the Rape Shield Law can be challenged on the grounds of the defendant's sixth amendment right to confrontation where the defendant's opportunity to probe for bias through cross-examination is precluded by the operation of the law. Recommendations to revamp section 3104 have ranged from a discretionary standard to a strict rule under which evidence would be admissible only in certain well-defined situations. The most constructive recommendation has been offered by Professor Marilyn Berger, who suggests seven types of evidence that a defendant should be allowed to introduce, subject to a court determination of relevance and probative worth. Two positive steps toward reform are Pennsylvania's abolition of the requirement of prompt complaint and its dispensation of the requirement of compensation. Included are 93 case notes.