Rape shield laws limit or prohibit the use of evidence of a victim’s past sexual history to undermine that victim’s credibility. The purpose of rape shield laws is to protect victims from the emotional distress of being cross-examined about their sexual history on the witness stand. Courts have stated that a victim’s sexual history has little relevance and the humiliation and fear of being questioned about past sexual conduct will prevent victims of rape to come forward and pursue charges.

What Evidence Will Be Excluded?

Generally, rape shield laws will exclude any evidence that does not pertain directly to the sexual assault case at hand. This evidence can include:

  • Evidence regarding the victim’s reputation: For example, rape shield laws will prevent a witness from testifying that the victim had a reputation for morally loose conduct.
  • Evidence of past sexual behavior not related to the rape accusation at hand: For example, the number of a victim’s sexual partners usually cannot be brought in as evidence under the rape shield laws.

What Evidence Can Be Admitted?

The rape shield laws typically do not exclude evidence directly related to the rape case at hand. Such evidence can include:

  • Prior consensual relationship: Prior or subsequent sexual conduct with the defendant that tends to show consent by the victim.
  • Physical injuries caused by another: Evidence of specific instances of sexual activity with another party that would show that the rape was not committed by the defendant.
  • Other sources of bodily fluids: Evidence that semen, sexually transmitted diseases, pregnancies and/or injuries were not caused by the defendant.
  • Evidence o attack the victim’s testimony: Evidence that victim did engage in sexual activity if victim testifies that he or she did not engage in any sexual activity during a time period.
  • Due process requirements: Any evidence that the judge finds relevant to the case or that must be admitted to protect the constitutional rights of the defendant: a judge will usually use a balancing test to determine if the potential harm to the victim will outweigh the relevance of the evidence.

Can Rape Shield Laws Be Used In Civil Lawsuits?

Rape cases are generally heard by criminal courts. Most states have rape shield laws in place specifically for criminal law trials.

However, plaintiffs are allowed to sue the defendant in civil courts as well for financial compensation. Congress has extended rape shield law protection to federal courts hearing civil cases of rape.  A small number of states, either through official legislation or judicial interpretation, have also extended rape shield laws to civil cases. These states include, but are not limited to, Illinois, New Jersey and Nevada.

Constitutional Challenges to Rape Shield Laws

Many defendants accused of rape have challenged the rape shield laws as a violation of their constitutional rights. Defendants have challenged the law claiming that the rape shield law prevents the defendant’s right to confront their accuser, which is protected by the Sixth Amendment. The courts have rejected this argument since the Defendant is not prevented from confronting their accuser on different grounds that is relevant to the particular incident in question.

The courts have also rejected other constitutional challenges brought by the defendant regarding vagueness of the law and equal protection violations.

What Can You Do If You Have Been Accused of Rape?

Rape is a serious charge with many complexities. A skilled criminal defense lawyer familiar with your state criminal laws can explain your options and help formulate possible defenses.