In the 1970’s, under pressure from feminist activists, lawyers, and legislators, most states changed their rape laws to ease the emotional burden of rape victims who testified in court. They had found that, for many women, going through the legal process was as painful as the rape itself. No longer did a woman have to show up in the court with broken bones and missing teeth to be taken seriously. Rape shield laws prohibited lawyers from delving into the victim’s sexual history.
As a result, rape victims started coming forward, and not only those attacked by strangers, but those assaulted by coworkers, classmates, family members, and acquaintances. Victims often do not report a rape, largely because they fear overbearing hostile police, and fear of a trial ensuing vicious attacks on their character. Although false reports are no common than any other crime, justice system officials are highly skeptical of women who claim to have been raped by acquaintances.
If the rape victim’s conduct prior to the crime violated traditional sex-role norms, police commonly disbelieve her report or blame her for her rape. Many officials deny justice to women who have engaged in non-marital sex, or other “improper” behaviors, for example, such as drinking heavily, hitchhiking, or wearing sexy clothing (Byrden, Lengnick 5). There are only two exceptions to the rape shield law which is that evidence of the victim’s past sexual conduct with the defendant can be admitted, but only if it is material to a fact at issue (generally consent).
Another exception is when its inflammatory or prejudicial nature does not outweigh its probative value, meaning that what the defense is trying to prove does not put prejudices on the jury against the alleged victim. Finally, evidence of prior sexual activity with persons other than the defendant can be admissible only to show the source of pregnancy, semen, or disease (4). Most proposals to reform rape shield laws, have been designed to improve the prosecution’s chances in acquaintance rape cases, and to lessen the victim’s ordeal by restricting inquiries into her relationships with other men.
In the prosecution’s point of view, acquaintance rape cases are most difficult to win if the woman either had engaged in consensual sex with the defendant at some time before the alleged rape, or behaved in ways that violated traditional norms of female propriety such as those mentioned above (5). What is the origin to this prejudice against “bad victims” who are raped by acquaintances? One theory is that male ideology pervades the criminal justice system.
According to this view the “respectable” males who dominate the system such as police, prosecutors, jurors, and judges, are sincerely horrified by stranger rapes, and rapes involving guns or knives (5). They also hate rapes that occur in “inappropriate” relationships such as incest. In such cases, the rape scenario does not resemble ordinary, socially acceptable sexual relations. On the other hand, respectable men empathize with men who are accused of having raped a woman on a date (6).
The “respectable” men tend to identify with the male in a dating situation, and he can easily imagine feeling accused of rape, or irresistibly provoked by a “loose woman” (6). Accordingly, he wishes to ensure that “normal’ aggressive male sexuality is protected by the law. Many contend that men, irrationally fearing false rape accusations, are deeply suspicious of women who claim to have been raped by an acquaintance. Men and women who have adopted this male ideology often express this suspicion by blaming the female victim of the rape rather than the male perpetrator.
One example is that some used to claim that it is impossible to rape a woman against her will (8). Another rape myth is that all women ant to be raped and those who decline men’s sexual advances are only being coy, consciously or not, they secretly crave sex (8). More widespread is the idea that rapes are caused by a sudden uncontrollable explosion of male desire, ignited by the behavior of a provocatively sexy woman (9).
One thing has been clear, which is that many rape victims were subjected to institutionalized sexism, which began with their treatment by the police, continued through the legal system, much influenced by notions of victim precipitation, and ended with the acquittal of many rapists. During the past two decades, many rape scholars have been feeling nothing but sorrow for the exceedingly high rate of attrition in rape cases, especially acquaintance cases.
According to one authority, “the likelihood of a rape complaint actually ending in conviction is generally estimated at 25%” (15). Recent crime-victim survey data suggest that each year an estimated 500,000 women are victims of some form of rape or sexual assault (22). Yet in 1994, only 102,096 rapes were reported to authorities, and ultimately there were only an estimated 36,610 arrests for forcible rape 922). Data from several jurisdictions, the Senate Judiciary Committee reported that 98% of rape victims “never see their attacker caught, tried, and imprisoned” (24).
One goal of the rape shield law was to reduce the rape victim’s ordeal in the justice system and to increase reporting rates. Many scholars believe that the proportion of victims who report rapes has risen in recent decades. For example, one study concludes that the national proportion of rape victims who reported the crime rose by 105 between 1980 and 1990, showing an increase but one greater than for non-sexual assault and robbery showing a 12% decrease (27).
The single most common reason for failure to press charges was to avoid the ordeal of the courtroom, where the victim anticipated that she would be blamed for the crime and embarrassing questions would be raised about her sexual habitation, for example, an abortion, use of birth control, and that she slept around (31). Police who are extremely negative also affect the victim’s decisions. A study in Denver found that 38% of rape accusers withdrew their charges soon after filing them (31). Among reasons given was police resistance to prosecuting the case.
It was investigated to see which variables were correlated with the victim’s willingness to prosecute. It was concluded that the perpetrator’s use of a weapon and the presence of a witness to the rape were important factors in both acquaintance and stranger rape cases (32). To explain this finding, it was said that detectives influence the woman’s decision to prosecute. If no weapon was used, and no witnesses exist, the police may feel that the prosecution would be futile (32). In order to decrease the number of unsolved crimes on his record, a detective may attempt to dissuade the woman from pressing charges (32).
In Michigan, a study of the impact of comprehensive rape law reforms found that the rate of unfoundings remained stable (less than 10%) after passage of the reforms (34). Between 1973 and 1977, arrests for forcible rape rose by 61%, compared with 16% increases for both murder and aggravated assault and with robbery, which showed a decline of 8% (34). Although the increased number of arrests was a predictable result of increased reporting coupled with a stable unfounding rate, it is concluded that the rising arrest rate was also influenced by Michigan’s strong rape law reforms
Promiscuity is perhaps the most effective charge that a rape defendant can level against his accuser. Prior to the rape shield laws, courts generally regarded the woman’s ‘character for chastity’, her propensity to engage in non-marital discourse, as relevant to whether she had consented (67). Modern rape scholars will argue that the sexual history evidence is irrelevant and prejudicial. They maintain that the complainant’s sexual history has little or no tendency to show consent, because non-marital sex has become common and consent to sex on one occasion, with one man, is not evidence of consent on another occasion or with another man (67).
Susan Estrich stated she would exclude evidence of the woman’s past sexual encounters with other men because “most women, like most men, have had past sexual encounters and so unless the pattern is indeed peculiarly close, they don’t prove a thing” (67). One justification for excluding past sexual evidence in a rape case is the argument that the probative value of the evidence is outweighed by the danger that it will prejudice the jury. A woman’s promiscuity enhances the plausibility of the defendant’s tale of seduction, but it also, much less obviously, it enhances the plausibility of her tale of rape.
The woman’s failure to accuse any of her prior lovers of rape tends to show that she does not make false rape accusations: “If the victim has had twenty instances of prior sexual conduct with rock stars, without claiming rape, in the absence of other evidence of motivation the most reasonable inference is that she claimed rape this time because she was raped” (69). More important, sexual permissiveness is associated with rape victimization.
The best predictor of one whether one will be a rape victim, according to research by Koss and Dinero, is a composite model based on a history of child sexual abuse, liberal sexual attitudes, higher than average alcohol use, and above average sexual activity (69). In other words, the women who are most likely to consent are also the women who are most likely to be raped when they do not consent. Data was collected for all cases of forcible rape listed by the Philadelphia police in 1958 and 1960. It was found that, of 640 women who reported rapes to the police, 19% had an arrest record, and 37. % of these arrests were for sexual misconduct including “promiscuity” and prostitution (70). If juvenile misconduct is counted, 56. 4% of the rape complainants with a criminal record had engaged in sexual misconduct (70). About 20% of all reported victims had a “bad” reputation (70). Perhaps some of these “bad” women lied about being raped, but it was also concluded that rapists had assumed that the criminal justice system would not punish them for raping such women. To confirm this reputation a study of gang rape found that the rapists usually select victims known to have a “bad reputation” (70),
Prostitution is the most extreme example of evidence that the woman raped was promiscuous. Judges often admit evidence that the rape complainant was a prostitute, on the theory that it relevant on the issue of consent. Juries are often reluctant to convict men charged with raping prostitutes (71). One theory states that since prostitutes are used to indiscriminate sex with strangers, rape does not cause them the anguish that gives the crime its horror and therefore calls for a penalty that is among the most severe in our law.
In reality a man who obtains sex by force is guilty of rape even if his victim is a prostitute (71). Although prostitutes are insured to have sex with strangers, the forcible aspect of the assault, and the violation of their autonomy do not necessarily less traumatize them. Mimi Silbert studied 200 juvenile and adult street prostitutes in the San Francisco Bay area. Even though the study excluded rapes by prostitutes’ customers, Silbert found that almost 73% of the subjects had been raped, a total of 193 rapes (72). Of these rapes, 71% occurred after the women became prostitutes (72).
Not only were prostitutes more likely to be raped than the average woman, a large majority of these rapes (84%) were by strangers (72). In most cases the prostitute-victim suffered some physical injury, and the emotional impact of the rapes seemed to Silbert to be even greater for prostitutes than for other women. Only 19% reported they were raped to the police (72). Silbert also noted that “the rapes in study especially those occurring after the subjects entered prostitution, involved more rapists who were strangers, more use of force, and more serious injury to the victim than rapes of women who were not prostitutes” (72).
Having excluded rapes by customers, Silbert concluded that the extraordinarily high rape rate revealed in this study was not directly due to the womens’ work as prostitutes. He stated, “Instead, the rapes were associated with the victims’ vulnerability as women living in high-crime areas of the city and working during high-crime hours” (73). Given these findings it makes no sense to treat prostitutes’ rape complaints as less credible than those of other women. The New Mexico Supreme Court barred evidence of a motive to lie in one such case in 1997.
Defendant Richard Leonard Johnson claimed that on different nights he had picked up two prostitutes who accused him of rape after he refused to pay them. The trial judge barred any evidence of the women’s sexual pasts. The decision was based on a detective’s testimony that one woman told him she was not working as a prostitute the night she met Johnson, and that the other prostituted herself only occasionally to pay her rent. The appeals court reversed, holding Johnson’s evidence “went to the issue of whether the victims had reason to fabricate the rape to avenge defendant’s failure or refusal to pay them” (Gibeaut 32).
The state supreme court reversed again, saying Johnson had to show something more, such as a pattern of extortion attempts. He stated, “Simply showing that the victim engaged in an act or acts of prostitution is not sufficient to show a motive to fabricate” (32). Evidence that the defendant and the complainant previously were lovers is extremely effective in persuading police not to investigate a rape complaint and jurors not to believe it. Judges also have been known to take a low view of such cases (Bryden, Lengnick 74).
A prior relationship may supply a motive for false accusation. It was found that 31% of acknowledged rape victims, and 76% of those who in fact were raped but did not regard it as rape, had been involved romantically with the offender (74). According to a Bureau of Justice Statistics survey of rape victims, 28% of rapists were current or former husbands or boyfriends of the victim (75). Even if there have been no prior intimacies, a long-term dating relationship increases the popular acceptability of forced sex.
In one survey of high-school students, 43% of the males (and 32 % of the females) said that it is acceptable for a man to force a woman to have sex if they have dated foe a long time (77). According to a study of college students’ attitudes, if a woman has been sexually intimate with a man on ten previous occasions, a subsequent incident of forcible sex is less likely to be deemed rape than if the parties had no previous intercourse (77).
In December of 1999, it was said a court ruling ordering a new trial for a former Columbia University graduate student named Oliver Jovanovic whom was convicted of sexually abusing a woman he had met on the Internet could loosen protections for rape victims and discourage sex crime victims from reporting attacks. The Appellate Division of the State Supreme Court ordered a new trial for Jovanovic because it was said that his trial was unfair because the judge kept the jury from seeing four e-mail messages his accuser sent him that expressed an interest in sadomasochism.
When hearing this, many women’s rights groups said that the e-mail messages were not relevant because a sexual encounter should stop immediately when a woman asks, regardless of what she nay have said or done earlier (Rohde B3). President of the New York City chapter of the National Organization for women, Galen Sherwin, stated, “Because she characterizes herself as someone who enjoys submission, that doesn’t mean she means that she wants to be tied to a bed for twenty hours and tortured” (B3).
The 20-year-old victim, said he used an e-mail to lure her out on a date. When they met, she said that Javanovic lured her up in his apartment for twenty hours, burned her with candle wax, bit her until he drew blood and sodomized her with a baton (B3). If a new trial was to be enacted it would undermine the whole point of the rape shield law which came about to encourage rape victims to come forward by tightly restricting which aspects of their sex life could be brought to trial.
Sherry Colb, a professor at Rutgers University Law School in Newark, said the issue was whether the woman consented to specific sex acts, not what she wrote in e-mail messages, and that the messages that were shown showed the girl’s interest in sadomasochism and the others were not simply needed (B3). Colb stated, “This evidence would have further nauseated the jury toward the victim, and have them feel this victim wasn’t worth convicting someone for” (B3).
In response to this case Anne Bliske, executive director of the New York State Coalition Against Sexual Assault, stated, “Our contention is that no matter what, if a victim is clearly saying no, that’s it, at this point the act is no longer consensual” (B3). For twenty years, Canadian courts have been arguing for the issue of consent in sexual assault cases. As long as a complainant could be “undressed” in court by revealing her sexual history or describing what she was wearing, not wearing, or how much she had to drink, the accused could rely on sexism to revictimize the victim in court.
For this reason the unanimous Supreme Court of Canada ruling in the “Bonnets and Crinolines Case” as it came to be known, on February 25, 1999, was a major victory because it dismissed the notion of implied consent and affirmed that no does mean no” (Penni 12). Canada’s rape shield law was altered under the Charter of Rights in 1992 to balance between the rights of the accused (allowing sexual history in some case) and the rights of the victim (not allowing sexual history in “fishing expeditions”, simply to discredit the victim (12).
This new law defined consent as the voluntary agreement of the complainant to engage in sexual activity and said no that consent is obtained where the complainant shows, by words or conduct, that she or he does not consent to the activity. All in all, without rape shield laws, women would continue to be scrutinized in courtrooms during their rape trials. Not only would an increase in reporting rapes increase, but women would stick to that they were raped out of feeling comfortable to be able to enter a courtroom not feeling as guilty and embarrassed as they would have felt before the rape shield laws were enacted.
Women are now given a fairer trial due to these shield laws because they prevent a woman’s past sexual history to be revealed, unless under certain special circumstance apply as mentioned earlier. Women should not have to fear that because she sleeps with multiple partners, or leads a life of prostitution, or if she dresses a certain way that she deserved to be work. The reality is that no one deserves to be raped, and rape shield laws strengthen makes this reality now even stronger.