Volume 57

Rape Shield, Not Rape Force-Field: A Textualist Argument For Limiting the Scope of the Federal Rape Shield Law

by Uriel Hinberg

Before the passage of Rape Shield laws, the American legal system severely mistreated female rape victims. When the issue of consent was contested, evidence of the woman’s “unchaste” character could be presented as evidence that she did indeed consent. Some jurisdictions even allowed a woman’s general credibility to be impeached with evidence of her “unchastity.” Rape Shield laws, both the Federal Rape Shield Law (the “Rule” or “FRE 412”) and state analogues, put an end to these practices by instituting general prohibitions, subject to limited exceptions, against admitting evidence of a victim’s past sexual behavior. But Rape Shield laws, many of which are written broadly, have been the targets of fierce criticism too.

Perhaps the most troubling aspect of Rape Shield laws is their potential to exclude relevant evidence that might help exonerate a defendant. Even after the passage of Rape Shield laws, courts must admit evidence if its exclusion would violate the defendant’s constitutional right to present a complete defense. In the absence of clearly-defined rules, however, courts have struggled to define the parameters of this right. Working with an amorphous case-by-case standard, courts are hard-pressed to reliably protect this right. This piece will make a textualist argument for an important limitation to the FRE 412: that the Rule’s reach is limited to evidence of sexual behavior or sexual predisposition that is presented for the purpose of proving the truth of those matters.

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