NCPA - National Center for Policy Analysis

Unintended Consequences of "Rape Shield Laws"

January 10, 2002

Rape shield laws have been hailed as a way to keep victims from being smeared in court, but civil libertarians have also worried about unintended consequences, specifically when they have kept juries from hearing evidence highly relevant to the guilt or innocence of the accused.

  • In one case a judge excluded portions of the accuser's email with her alleged attacker in which she discussed her sadomasochistic relationship with another man -- leading to an appellate court setting aside the conviction, but only after the accused had spent $500,000 in legal fees and spent 20 months in jail.
  • During his trial for assault, sportscaster Marv Albert wasn't allowed to present evidence about his former partner's sexual activities despite a witness who was willing to give potentially exonerating evidence.
  • Attorneys for an 18-year-old man convicted of raping his 22-year-old foster sister weren't allowed to tell jurors she was at the time facing criminal charges of having sex with minors.
  • In an Oregon case the jury never heard the accuser had given counselors several different, inconsistent versions of her story, thus denying them ample room for reasonable doubt.

Shield laws were enacted to put an end to truly abusive practices. But now even many feminist legal theorists believe the pendulum may have swung too far the other way.

Source: Cathy Young, "Excluded Evidence," Reason Magazine, February 2002.


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