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Rape Shield Law

Article By: KaitlinRhode14
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A research paper about why the rape shield law should remain in affect.


Submitted:May 16, 2013    Reads: 12    Comments: 0    Likes: 0   


A Victim's Rights or an Unfair Trial?

Kaitlin Rhode

In the United States, rape is one of the most unreported crimes. Many victims are afraid to come out with their abuse because they know they may be humiliated in court. Good defense lawyers often make the accuser seem promiscuous, and suggest that the victim consented to the sexual abuse. In order to protect these victims, and promote justice, the rape shield law needs to remain in effect. Without the law, defense lawyers would tear down the victim on the stand, and fewer victims would receive justice.

When an emotionally and physically damaged rape victim sits on the stand in front of his or her abuser, the last thing he or she wants is to be shamed by their sexual history. Not only are victim's sexual pasts irrelevant in a rape case, but their past is not necessary if the accused was really guilty. When anyone says no it means no, regardless of how many times they may have said yes in the past. The defense lawyers constantly seek to damage the accuser's credibility or indicate that he or she was likely to have complied with the abuse, no matter the extent of it.

Critics argue against the rape shield law by saying it violates a defendants' rights. They point out that while the defendant's sexual history is open to discussion, an accuser's is not. Dan Recht, former president of the Colorado Criminal Defense Bar, states, "It is really unfair that a defendant's sexual past comes in much more readily than an accuser's sexual past, even though the defendant has a whole lot more to lose" (Rape Shield Laws, 2004). He makes a good point, but hasn't the victim already lost enough? The defendant, if guilty, has already physically and emotionally scarred the victim. If we allow defense attorneys to dig out a victim's sexual past to inflame the jury against the victim and turn the jury in favor of the defendant, the victim is only further humiliated and damaged in front of the public spectacle of a court room. John Rhode, a defense lawyer from Antigo, Wisconsin says that, "Balancing the victim's rights and the accused rights is the right thing to do. Usually the danger of inflaming the jury's prejudices outweighs the small amount of relevance in knowing his or her sexual history. Emotions should not be a part of trial" (Rhode, 2012) (Greaney, 2010).

Other people who try to tear down this law state that an accused should have at his or her disposal all the evidence to prove his or her innocence. By giving the accused everything they need to verify their innocence, the court is giving them the tools to make their case stronger. However, if an accused is really guilty, it is troubling that the court may allow them to introduce the evidence that helps them get away with the offense. A victim has shown a lot of strength and confidence by confronting their abuser. If a court allows the defense to introduce evidence about the victim's sexual history, the court is not protecting the victim. The United States needs the rape shield law in order to shield the victim and to make sure that the abuser does not get away with the crime he or she has committed.

Before the rape shield law, rape victims were forced to talk about the intimate details of their sex lives during trials, an experience that supporters say only added to their ordeal. The victims were being terrorized in the courtroom. They would get on the witness stand and be asked about every single sexual act they had ever committed with anyone, in grotesque detail. John Rhode says that, "Without the rape shield laws, good defense lawyers would turn the jury to the side of the defendant by making the victim seem like a prostitute" (Rhode, 2012). Rape victims are mistreated in a way that victims of no other crime are. They need to be protected from irrelevant, harassing questioning that has little, if anything to do with the issues being tried. If the rape shield law was not in place, these victims would be continuously ridiculed on the stand and embarrassed in the court (Rape Shield Law, 2012) (Understanding Rape Shield Laws).

The Rape Shield law prevents defense lawyers from using a victim's sexual history and lifestyle against him or her in court. Such evidence tends to prejudice jurors against the accuser, despite the fact that a victim's sex life has little bearing on whether he or she was the victim of rape. Defense lawyers have good reason to want to provide jurors with as much information as possible about victims' sex lives. Social-science research suggests that jurors are as likely to assess defendant's guilt based on their view of the victim's virtue as on physical evidence (Welty, 2009).

This law also serves to embolden victims to come forward and report crimes against them. Rape continues to be the least reported of all crimes (Welty, 2009). By reassuring victims that their reputations will be protected in trial, the rape shield law encourages them to speak out. By prohibiting the introduction of an accuser's sexual history, rape shield laws restrict the evidence discussed in trial to what is strictly relevant to the crime committed. Preventing prejudice from influencing a verdict is the most important function of the rape shield laws. They are a protection of the truth-seeking process.

These laws need to remain in effect so that the rape cases stay as fair and unbiased as possible. The courts need to protect rape victims and uphold such laws in order to allow victims to speak out about the violent acts that have been done. The victims have already been through enough suffering and mental damage. They do not need to be further harmed by being ridiculed on the stand by defense attorneys. The rape shield laws need to remain in effect so innocent victims can receive justice.


Bibliography

Rape Shield Laws. (2004, June 11). Retrieved October 30, 2012, from "Rape Shield Laws" Issues and Controversies on File: http://www.2facts.com/icof_story.aspx?PIN=i090127&term=rape+shield+law

Rape Shield Law. (2012). Retrieved October 31, 2012, from Enclyopaedia Briticanna: http://www.britannica.com/EBchecked/topic/1163072/rape-shield-law

Estrich, S. (2003, July 7). Rape Shield Laws Aren't Fool Proof. Retrieved October 30, 2012, from Estrich, S. (200 http://usatoday30.usatoday.com/news/opinion/editorials/2003-07-27-estrich_x.htm

Greaney, T. (2010, April 1). Case Shows Rape Shield Only Goes So Far. Retrieved October 30, 2012, from http://www.columbiatribune.com/news/2010/apr/01/case-shows-rape-shield-only-goes-so-far/

LeMance, K. (n.d.). Rape Shield Laws. Retrieved October 31, 2012, from Legal Match: http://www.legalmatch.com/law-library/article/rape-shield-laws.html

Montado, C. (n.d.). Rape Shield Law: The Kobe Bryant Case. Retrieved October 31, 2012, from about.com: http://crime.about.com/od/current/a/kobe040723.htm

Paulson, A. (n.d.). Is the Rape Shield Law Working? Retrieved October 31, 2012, from The Christian Science Monitor: http://www.csmonitor.com/2004/0325/p12s02-usju.html

Rhode, J. (2012, October 31). Rape Shield Laws. (K. Rhode, Interviewer)

The Mission Creep of Rape Shield Law. (n.d.). Retrieved October 31, 2012, from Simple Justice: http://blog.simplejustice.us/2012/10/27/the-mission-creep-of-rape-shield-law.aspx

Understanding Rape Shield Laws. (n.d.). Retrieved October 30, 2012, from http://www.crisisconnectioninc.org/sexualassault/understanding_rape_shield_law.htm

Welty. (2009, Feburary 18). New Cases on Rape Shield Law. Retrieved October 30, 2012, from http://nccriminallaw.sog.unc.edu/?p=82

References

Rape Shield Laws. (2004, June 11). Retrieved October 30, 2012, from "Rape Shield Laws" Issues and Controversies on File: http://www.2facts.com/icof_story.aspx?PIN=i090127&term=rape+shield+law

Rape Shield Law. (2012). Retrieved October 31, 2012, from Enclyopaedia Briticanna: http://www.britannica.com/EBchecked/topic/1163072/rape-shield-law

Greaney, T. (2010, April 1). Case Shows Rape Shield Only Goes So Far. Retrieved October 30, 2012, from http://www.columbiatribune.com/news/2010/apr/01/case-shows-rape-shield-only-goes-so-far/

Rhode, J. (2012, October 31). Rape Shield Laws. (K. Rhode, Interviewer)

Understanding Rape Shield Laws. (n.d.). Retrieved October 30, 2012, from http://www.crisisconnectioninc.org/sexualassault/understanding_rape_shield_law.htm

Welty. (2009, Feburary 18). New Cases on Rape Shield Law. Retrieved October 30, 2012, from http://nccriminallaw.sog.unc.edu/?p=82





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