Rape shield law
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|Types of evidence|
|Hearsay and exceptions|
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A rape shield law is a law that limits the ability to introduce evidence or cross-examine rape complainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim.
In Australia, all states and mainland territories have rape shield laws that limit the admission of evidence in criminal proceedings where someone is charged with a sexual offence. The principal aims of these laws are to:
- prohibit the admission of evidence of a complainant’s sexual reputation;
- prevent the use of sexual history evidence to establish the complainant as a ‘type’ of person who is more likely to consent to sexual activity; and
- exclude the use of a complainant’s sexual history as an indicator of the complainant’s truthfulness.
In Canadian criminal proceedings in respect of a sexual assault, section 276(1) of the Criminal Code of Canada restricts the admissibility of evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person. Such evidence "is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief." The law sets down (in sections 276(2) and 276(3)) strict rules and procedures for determining admissibility of such evidence.
In 1992, legislation amended the Criminal Code to re-establish this rape shield provision with strict guidelines for when and how previous sexual conduct could be used by a defendant at trial. The reform was enacted by Parliament after the 1991 ruling, R. v. Seaboyer had struck down the previously existing rape shield law (enacted in 1982) as unconstitutional. Bill C-49 amended the Criminal Code provisions that govern the admissibility of evidence of sexual activity; refined the definition of consent to a sexual act; and restricted the defence that an accused had an honest but mistaken belief that the accuser had consented. The 1995 Supreme Court judgment in the case of British Columbia Bishop Hubert O'Connor (R. v. O'Connor) led to Bill C-46, which limited the production of a complainant's personal counselling records to the defence in sexual offence cases. Bill C-46 was tested in R. v. Mills, and upheld by the Supreme Court in 1999.
In the 2000 decision of R. v. Darrach, the Supreme Court of Canada upheld the law in a case involving former Ottawa resident Andrew Scott Darrach, who was convicted of sexually assaulting his ex-girlfriend. Darrach was sentenced in 1994 to nine months in jail for the assault. By a 9–0 decision, the court found that all the rape shield provisions in the Criminal Code are constitutional. The ruling said forcing the accuser to give evidence would invade her privacy and would "discourage the reporting of crimes of sexual violence." In his appeal, Darrach had argued that he had been denied a fair trial because he was unable to raise the fact that he mistakenly thought the incident was consensual. Additionally, Darrach had argued that the law unfairly required him to testify at his own trial because the trial judge had held an evidentiary hearing with the jury absent to determine whether an affidavit from Darrach describing his former relationship with the complainant was admissible. Darrach had refused to testify or be cross-examined on the affidavit and the trial judge had therefore ruled this evidence inadmissible.) The appeal upheld the trial judge's decision.
Sections 44 and 44A of the Evidence Act 2006 sets out rules for propensity evidence about a complainant's sexual experience and reputation in sexual cases. Prior to the 2006 Act, section 23A of the Evidence Act 1908, as amended by the Evidence Amendment Act 1977, set out these rules.
Section 44 protects complainants in prosecutions for sexual offences from certain questions and evidence about their sexual experience and reputation. The starting point is to exclude evidence or questions that relate to the complainant's reputation in sexual matters or to the complainant's sexual experience with a person other than the defendant. However, the Judge may permit any evidence or a question about that experience if satisfied that it would be contrary to the interests of justice to exclude it because of its direct relevance to the facts in issue or to the question of the appropriate sentence (the heightened relevance test).
Section 44A provides no evidence of a complainant's sexual experience may be offered in a criminal proceeding unless the other parties have been given notice of the proposed statement, or if every other party has waived the notice requirements, or if the Judge dispenses with those requirements. The section also sets out the notice requirements for evidence proposed to be offered in criminal proceedings.
Complainants are equally bound by the law, preventing them introducing evidence about their own sexual experience contrary to sections 44 and 44A.
Evidence of a complainant's sexual experience with the defendant is not subject to the heightened relevance test, although it is still subject to the general relevance test in sections 7 and 8 of the Evidence Act. This has proved to be a contentious issue, with the debate mainly centres on the perceived direct relevance of such evidence. Those in support of extending the rule to cover sexual experience with the defendant argue that evidence of previous sexual experience between the complainant and defendant should not lead to an implication that the complainant is more likely to agree to the sexual activity on another occasion. Those opposed argue that the existence of a prior sexual relationship between the complainant and the defendant will often be, or inevitably is, directly relevant.
In 2017, Law Commission began its second statutory review of the Evidence Act. In its March 2018 issues paper, it asked several questions about the operation of section 44, especially in light of two court cases:
- B (SC12/2013) v R  NZSC 151,  1 NZLR 261 – What admissibility rule should apply to sexual disposition evidence?
- Best v R  NZSC 122,  1 NZLR 186 – Should false and/or allegedly false complaints be treated as evidence of veracity, sexual experience, or as both?
In the late 1970s and early 1980s, almost all jurisdictions in the United States adopted some form of rape shield statute. The laws in each state differ in the scope of sexual behaviour shielded and time limits of the shield. Many states do not permit any evidence relating to the past sexual behaviour of the victim. This encompasses evidence of specific instances of the victim's prior or subsequent sexual conduct including opinion evidence or reputation evidence.
The Violence Against Women Act of 1994 created a federal rape shield law. The military has incorporated the rape shield law into Military Rules of Evidence, Rule 412. The military's rape shield law also applies to Article 32, pre-trial proceedings. A recent news article, however, has accused defense attorneys of violating rape shield protections during a pre-trial proceeding.
In 1999, in the case of People v. Jovanovic, the New York Court of Appeals ruled that a lower court had improperly ruled as inadmissible e-mails in which the plaintiff/witness in a rape case expressed her consent to, and later approval of, the encounter. The lower court ruled these e-mails inadmissible on the basis of rape shield laws; however, the Court of Appeals ruled that the previous court had misapplied those laws.
Identification of alleged rape victims by media outlets
As a matter of courtesy, most newspapers and broadcast media in the United States do not disclose the name of an alleged rape victim during the trial, and if the alleged rapist is convicted, most will continue to not identify the victim. If the case is dropped or the alleged rapist is acquitted, most media will no longer shield the name of the alleged victim.[dubious ] This practice was probably related to laws in some states which made it a crime to publicly reveal the name of the victim in a rape case. When such laws were challenged in court, they were routinely struck down as unconstitutional.
- In Cox Broadcasting Corp. v. Cohn 420 U.S. 469 (1975), the U.S. Supreme Court ruled unconstitutional a Georgia statute that imposed civil liability on media for publishing a rape victim's name. Cox's television station in Atlanta, WSB-TV, had obtained the victim's name from public court records—a factor the Supreme Court held to be important, noting that "the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection."
- In Florida Star v. B. J. F., 491 U.S. 524 (1989), the U.S. Supreme Court found a Florida statute which provided penalties for media outlets that publicized the name of an alleged rape victim unconstitutional.
- In State of Florida v. Globe Communications Corp., 648 So.2d 110 (Fla. 1994), the Florida Supreme Court held that a Florida criminal statute that prohibited the media from identifying the names of sexual assault victims violated the First Amendment. In that case, Globe Communications Corp. twice published the name and identifying information of a sexual assault victim, violating the Florida statute. The paper had lawfully learned the victim's name through investigation. The Florida Supreme Court relied on the U.S. Supreme Court's decision in Florida Star v. B.J.F., finding that the Florida statute barring any media publication of a rape victim's name was unconstitutional because it was "overbroad"; that is, it punished the media even if, for example, the name of the victim was already known in the community. It also found that the statute was "underinclusive" in that it punished only media publication and not acts by a private person.
- Australian Government: ALRC: 20. Matters Outside the Uniform Evidence Acts - Rape shield laws
- "Criminal Code of Canada". Government of Canada justice Laws Website. Government of Canada Ministry of Justice. Retrieved November 1, 2017.
- Nicole Baer. "Striking the Balance in Sexual Assault Trials". Justice Canada. 1 (1).
- Supreme Court upholds rape-shield law Erin Anderssen The Globe and Mail, Ottawa October 13, 2000.
- "Section 44 -- Evidence Act 2006". New Zealand Legislation Online. Retrieved July 27, 2018.
- "Section 23A -- Evidence Act 1908". New Zealand Legislation Online. Retrieved August 26, 2018.
- For example: K (CA640/2016) v R, 2017 NZCA 336.
- "Issues Paper 42 - Second Review of the Evidence Act 2006" (PDF). New Zealand Law Commission. March 2018. Retrieved August 29, 2018. This article incorporates text by the New Zealand Law Commission available under the CC BY 4.0 license.
- Rape Shield Statutes March 2011—accessed at National District Attorneys Association  Retrieved June 19, 2011.
- Factsheet: The Violence Against Women Act from The White House.
- Military Rules of Evidence, Rule 412
- Manual for Courts-Martial United States (2012), 405(i).
- Steinhauer, Jennifer (September 20, 2013). "Navy Hearing in Rape Case Raises Alarm". The New York Times. Retrieved September 21, 2013.
- New Directions from the Field: Victims Rights and Services for the 21st Century (Chapter 13), accessed October 16, 2012.