Sexual Assault Law Reform in Virginia - A Legislative History

• NCJ Number: 82746
• Journal: Virginia Law Review Volume: 68 Issue: 3 Dated: (March 1982) Pages: 459-505
• Author(s): H L Kneedler
• Date Published: 1981
• Length: 47 pages
• Publication Format: Article
• Language: English
• Country: United States of America

Annotation

This article examines Virginia's reform of its sexual assault laws, concentrating on the issues of victims' prior sexual conduct and their physical resistance during the act.

Abstract

Major subjects addressed in the article include the origins of the reasonable resistance requirement and the criticisms that led to its elimination, the extent to which evidence of the victim's past sexual conduct should be excluded at trial, and the constitutional issues raised by these evidentiary limitations. For over 100 years, the Supreme Court of Virginia consistently used language requiring reasonable physical resistance on the part of the sexual assault victims. In recent decisions, however, the court has adopted a different view of its role in reviewing rape convictions. Although it has still noted that the victim must reasonably resist the act, the court has emphasized that the issue of consent is within the province of the trier of fact and has refused to disturb rape convictions that once would have been overruled. Under the 1981 legislation, the prosecution need not prove that the victim cried out or physically resisted the assailant. Thus, lack of resistance may still be relevant factually, but it is no longer a separated legal element of a sexual assault offense. The most important and controversial provisions of Virginia's new sexual assault law are those which restrict the admissibility of evidence relating to the victim's past sexual conduct. The statute prohibits the use of reputation or opinion evidence of the victim's prior sexual conduct, admitting only specific acts of such conduct. In addition, evidence will not be admitted automatically; the judge must first find that the evidence is relevant to the disputed issues of the case. This aspect of the new statute is in potential conflict with the sixth amendment rights of confrontation and compulsory process from the defendant's point of view. Model jury instructions for rape are appended, and 172 footnotes are provided.