What Are Rape Shield Laws?

Rape shield laws protect survivors of sexual assault from further trauma and intimidation by preventing the defense from using the survivor’s previous sexual history against them in court. While some states have limited these laws to certain cases, most U.S. jurisdictions now have broad-based protections.

If you or a loved one experienced sexual assault, a sex abuse lawyer can help you seek justice. At Edwards Henderson, we understand the importance of these laws and are committed to providing legal support to survivors of sexual abuse.

Our experienced sex abuse lawyers help survivors understand and enforce their rights under rape shield laws so they can feel secure and protected as they seek justice.

What is Rape?

Rape refers to unlawful sexual intercourse or penetration of a person without their consent. Modern criminal law statutes have adopted a gender-neutral stance in their definition of rape.

The US Department of Justice defines rape as “the penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

Actual penetration, no matter how slight, is enough to constitute rape. Digital rape also constitutes as rape under many criminal statutes.

Rape has devastating physical, psychological, and emotional impacts on survivors. To protect survivors and hold perpetrators accountable, various laws have been enacted that help safeguard survivors and prevent victim-blaming and stigmatization: These are called rape shield laws.

Survivors of sexual assault might consider speaking to a compassionate sexual assault attorney for help navigating the legal system and pursuing justice. A sexual assault lawyer can provide legal advice, assist with filing a police report, represent clients in court, and help survivors recover the justice they deserve.

What Are Rape Shield Laws?

Rape shield laws limit or prohibit the use of evidence of a survivor’s past sexual history in a trial to undermine their credibility. These laws protect survivors from the emotional distress of being cross-examined about their sexual history on the witness stand. Such cross-examinations can be a particularly difficult and humiliating experience for survivors of sexual assault. This type of intense scrutiny may discourage them from coming forward to pursue charges.

Rape shield laws exclude any evidence that does not pertain directly to the sexual assault case at hand. Evidence regarding the survivor’s reputation or character is not admissible. These laws also exclude evidence of past sexual behavior unrelated to the rape accusation at hand.

Rule 412, Federal Rule of Evidence, recognizes that a survivor’s sexual behavior or sexual predisposition has little to no bearing on whether they consented to have sex with the abuser. Rape shield laws apply to both federal and state criminal and civil rape cases. This means survivors cannot be discredited based on their past “unchastity” or sexual history.

What Do Rape Shield Laws Cover?

The purpose of rape shield laws is to block the defense’s ability to attack the survivor’s reputation or use evidence of their specific sexual conduct in court. This helps prevent the survivor from being unfairly humiliated, embarrassed, or ostracized by the defense.

These laws limit the admissibility of evidence of prior sexual relationships or specific sexual conduct by the survivor. The goal is to prevent the defense from using this information to suggest the victim is promiscuous or somehow deserving of being raped.

Rape shield laws also require a special showing of proof before any evidence of the survivor’s sexual conduct becomes admissible in court. This requirement ensures the defense cannot simply make accusations against the survivor without first providing evidence that the conduct is relevant to the case at hand.

In addition, rape shield laws limit the extent a survivor’s reputation may be attacked. For instance, a survivor’s sexual orientation, profession, or religious beliefs cannot be used against them in court. These laws are intended to ensure the trial remains focused on the issue of whether the defendant committed the alleged rape.

Rape Shield Laws: Limitations

Despite the importance of rape shield laws, some limitations exist. One high-profile case demonstrating these limitations is The People v. Kobe Bryant. In this case, the judge allowed the admission of evidence related to the complainant’s sexual activity with someone other than the defendant.

Under Rule 412, a complainant’s past sexual activity may be admissible as evidence if it is relevant to prove consent, source of semen, pregnancy, injury, disease, other physical evidence, or if the exclusion of evidence violates the defendants’ constitutional rights. While this may be frustrating for survivors, these exceptions are intended to ensure that defendants receive a fair trial.

In New York, rape shield laws are codified in Criminal Procedure Law §§ 60.42 and 60.43. These laws help prevent the introduction of evidence regarding a complainant’s sexual history in a prosecution for a sex offense. Some exceptions to this rule exist.

Evidence of a complainant’s sexual history is admissible if it:

• Shows the accused and the complainant engaged in sexual conduct in prior specific instances
• Proves the complainant was convicted of a prostitution offense within the three previous years
• Rebuts evidence introduced by the prosecutor of the complainant’s lack of sexual conduct during a specific time period
• Refutes evidence by the prosecutor that the complainant’s disease or pregnancy was caused by the defendant or that the defendant was the source of biological evidence recovered
• Is relevant and admissible in the interests of justice, as pre-determined by the court

Despite these limitations, rape shield laws encourage sexual assault survivors to come forward by sparing them from specific questions by defense attorneys. Reporting sexual assault or rape can help a person move forward, prevent others from being assaulted by similar parties, and help obtain the necessary resources to heal.

What is the Violence Against Women Act?

The Violence Against Women Act (VAWA) was first passed in 1994, authored by then-Senator Joseph R. Biden. Since then, the VAWA has been up for renewal every five years, with each reauthorization building on existing protections and programs.

The VAWA Reauthorization Act of 2022 provides survivors, local programs, and communities with resources for housing, legal assistance, alternatives to criminal responses, and prevention programming.

Notably, the law includes new economic justice provisions and bolsters access for survivors of all genders by strengthening non-discrimination laws and creating an LGBTQ services program.

In addition, the law restores tribal jurisdiction, improves existing housing protections, increases emergency and short-term housing access, and creates dedicated investments in culturally-specific service providers.

Overall, the VAWA represents a crucial effort to provide support and resources for survivors of violence, while also working to prevent future incidents of sexual assault and intimate partner violence.

Rape Shield Reform Bill

In 2019, the Rape Shield Reform Bill was introduced in New York State to remove from admissibility evidence that proves or tends to prove that a complainant was convicted of a prostitution offense within three years prior to the sex offense subject of the prosecution.

According to the New York Civil Liberties Union (NYCLU), “Categorically denying sex workers the protection of the ‘rape shield law’ is an unconstitutional infringement on the right to sexual privacy, promotes the idea that convictions for prostitution are somehow relevant to the credibility of the complainant, and serves to further institutionalizes the popular misconception that sex workers cannot be raped, ignoring the fact that they are actually at greater risk of sexual assault than the general population.”

The Rape Shield Reform Bill aims to restore sex workers’ constitutional right to privacy and allows survivors of sexual assault to come forward to law enforcement without fear of discrimination and humiliation by the criminal justice system.

Speak to a Compassionate Sexual Assault Attorney

If you or someone you know has experienced sexual assault, consider seeking legal help as soon as possible. At Edwards Henderson, we understand the sensitive nature of these cases. Our experienced attorneys are dedicated to helping survivors seek justice while protecting their privacy in court.

Our attorneys assist with navigating the legal system and provide compassionate support throughout the process. Contact us today for a free legal consultation and find out how we can help you navigate the legal process and fight for your rights.

If you or a loved one are looking for resources on sexual assault, including crisis support, dating and domestic violence, street harassment, human trafficking, or other related matters, contact the sexual assault hotline.