Rape shield law
Encyclopedia
A rape shield law is a law that limits a defendant's ability to cross-examine
rape
complainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim.
to establish a rape shield law with strict guidelines for when and how previous sexual conduct could be used by a defendant at trial. The reform came in the Parliament after the 1991 ruling, R. v. Seaboyer
. Bill C-49 amended the Criminal Code provisions that govern the admissibility of evidence of sexual activity; refined the definition of consent to a sexual act; and restricted the defense
that an accused had an honest but mistaken belief that the accuser had consented. The 1995 Supreme Court
judgment in the case of British Columbia
Bishop Hubert O'Connor (R. v. O'Connor
) led to Bill C-46, which limited the production of a complainant's personal counselling records to the defense in sexual offence cases. Bill C-46 was tested in R. v. Mills, and upheld by the Supreme Court in 1999.
In the 2000 decision of R. v. Darrach
, the Supreme Court of Canada
upheld the law in a case
involving former Ottawa
resident Andrew Scott Darrach, who was convicted of sexually assaulting his ex-girlfriend. Darrach was sentenced in 1994 to nine months in jail
for the assault. By a 9-0 the court found that all the rape shield provisions in the Criminal Code are constitutional. The ruling says, forcing accuser to give evidence would invade her privacy and would "discourage the reporting of crimes of sexual violence." In his appeal, Darrach had argued that he had been denied a fair trial
because he was unable to raise the fact that he mistakenly thought the incident was consensual. Additionally, Darrach argued that the law unfairly required him to testify at his own trial. During the trial, Darrach refused to testify at an evidentiary hearing and the evidence was ruled inadmissible
.
or reputation evidence
.
In 1999 in the case of People v. Jovanovic
, the New York Court of Appeals
ruled that a lower court had improperly ruled as inadmissible e-mail in which the plaintiff/witness in a rape case expressed her consent to, and later approval of, the encounter. The lower court ruled these e-mails inadmissible on the basis of rape shield laws, however the Court of Appeals ruled that the previous court had misapplied those laws.
Cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...
rape
Rape
Rape is a type of sexual assault usually involving sexual intercourse, which is initiated by one or more persons against another person without that person's consent. The act may be carried out by physical force, coercion, abuse of authority or with a person who is incapable of valid consent. The...
complainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim.
In Canada
In 1992 legislation amended the Criminal Code of CanadaCriminal Code of Canada
The Criminal Code or Code criminel is a law that codifies most criminal offences and procedures in Canada. Its official long title is "An Act respecting the criminal law"...
to establish a rape shield law with strict guidelines for when and how previous sexual conduct could be used by a defendant at trial. The reform came in the Parliament after the 1991 ruling, R. v. Seaboyer
R. v. Seaboyer
R. v. Seaboyer; R. v. Gayme, [1991] 2 S.C.R. 577 is a leading Supreme Court of Canada decision where the Court struck-down a rape-shield provision of the Criminal Code of Canada as it violated the right to "full answer and defence" under sections 7 and 11 of the Canadian Charter of Rights and...
. Bill C-49 amended the Criminal Code provisions that govern the admissibility of evidence of sexual activity; refined the definition of consent to a sexual act; and restricted the defense
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
that an accused had an honest but mistaken belief that the accuser had consented. The 1995 Supreme Court
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
judgment in the case of British Columbia
British Columbia
British Columbia is the westernmost of Canada's provinces and is known for its natural beauty, as reflected in its Latin motto, Splendor sine occasu . Its name was chosen by Queen Victoria in 1858...
Bishop Hubert O'Connor (R. v. O'Connor
R. v. O'Connor
R. v. O'Connor, [1995] 4 S.C.R. 411 is a leading Supreme Court of Canada decision on disclosure of medical records. The Court held that the medical and counselling records of a complainant in a sexual assault case that are held by a third party can be disclosed by order of the judge if they meet...
) led to Bill C-46, which limited the production of a complainant's personal counselling records to the defense in sexual offence cases. Bill C-46 was tested in R. v. Mills, and upheld by the Supreme Court in 1999.
In the 2000 decision of R. v. Darrach
R. v. Darrach
R. v. Darrach, [2000] 2 S.C.R. 443, 2000 SCC 46, is a leading case decided by the Supreme Court of Canada on the constitutionality of the Criminal Code of Canada's rape shield law. The Court upheld the law.-Background:...
, the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
upheld the law in a case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
involving former Ottawa
Ottawa
Ottawa is the capital of Canada, the second largest city in the Province of Ontario, and the fourth largest city in the country. The city is located on the south bank of the Ottawa River in the eastern portion of Southern Ontario...
resident Andrew Scott Darrach, who was convicted of sexually assaulting his ex-girlfriend. Darrach was sentenced in 1994 to nine months in jail
Jail
A jail is a short-term detention facility in the United States and Canada.Jail may also refer to:In entertainment:*Jail , a 1966 Malayalam movie*Jail , a 2009 Bollywood movie...
for the assault. By a 9-0 the court found that all the rape shield provisions in the Criminal Code are constitutional. The ruling says, forcing accuser to give evidence would invade her privacy and would "discourage the reporting of crimes of sexual violence." In his appeal, Darrach had argued that he had been denied a fair trial
Trial
A trial is, in the most general sense, a test, usually a test to see whether something does or does not meet a given standard.It may refer to:*Trial , the presentation of information in a formal setting, usually a court...
because he was unable to raise the fact that he mistakenly thought the incident was consensual. Additionally, Darrach argued that the law unfairly required him to testify at his own trial. During the trial, Darrach refused to testify at an evidentiary hearing and the evidence was ruled inadmissible
Admissible evidence
Admissible evidence, in a court of law, is any testimonial, documentary, or tangible evidence that may be introduced to a factfinder—usually a judge or jury—in order to establish or to bolster a point put forth by a party to the proceeding...
.
In the United States of America
In the late 1970s and early 1980s, almost all jurisdictions in the United States adopted some form of rape shield statute. The laws in each state differ according to the scope of sexual behavior shielded and time limits of the shield. Many states do not permit any evidence relating to the past sexual behavior of the victim. This encompasses evidence of specific instances of the victim's prior or subsequent sexual conduct including opinion evidenceExpert witness
An expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialised knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally...
or reputation evidence
Character evidence
Character evidence is a term used in the law of evidence to describe any testimony or document submitted for the purpose of proving that a person acted in a particular way on a particular occasion based on the character or disposition of that person...
.
In 1999 in the case of People v. Jovanovic
People v. Jovanovic
People v. Jovanovic, 263 A.D.2d 182, 700 N.Y.S.2d 156 , was a highly publicized criminal case in New York. In 1996, Oliver Jovanovic was accused of sadomasochistic torture of a woman whom he had met shortly before on the Internet...
, the New York Court of Appeals
New York Court of Appeals
The New York Court of Appeals is the highest court in the U.S. state of New York. The Court of Appeals consists of seven judges: the Chief Judge and six associate judges who are appointed by the Governor to 14-year terms...
ruled that a lower court had improperly ruled as inadmissible e-mail in which the plaintiff/witness in a rape case expressed her consent to, and later approval of, the encounter. The lower court ruled these e-mails inadmissible on the basis of rape shield laws, however the Court of Appeals ruled that the previous court had misapplied those laws.
Identification of alleged rape victims by media outlets
As a matter of courtesy, most newspapers and broadcast media in the United States do not disclose the name of an alleged rape victim during the trial, and if the alleged rapist is convicted, most will continue to not identify the victim. If the case is dropped or the alleged rapist is acquitted, most media will no longer shield the name of the victim. This practice was probably related to laws in some states which made it a crime to publicly reveal the name of the victim in a rape case. When such laws were challenged in court, they were routinely struck down as unconstitutional.- in Cox Broadcasting Corporation v. Cohn , the U.S. Supreme Court ruled unconstitutional a Georgia statute that imposed civil liability on media for publishing a rape victim's name. The news station had obtained the victim's name from public court records– a factor the Supreme Court held to be important, noting that "the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection."
- in Florida Star v. B.J.F., , the U.S. Supreme Court found a Florida statute which provided penalties for media outlets that publicized the name of an alleged rape victim unconstitutional.
- in State of Florida v. Globe Communications Corp., 648 So.2d 110 (Fla. 1994), the Florida Supreme CourtFlorida Supreme CourtThe Supreme Court of the State of Florida is the highest court in the U.S. state of Florida. The Supreme Court consists of seven judges: the Chief Justice and six Justices who are appointed by the Governor to 6-year terms and remain in office if retained in a general election near the end of each...
held that a Florida criminal statute that prohibited the media from identifying the names of sexual assault victims violated the First Amendment. In that case, Globe Communications Corp. twice published the name and identifying information of a sexual assault victim, violating the Florida statute. The paper had lawfully learned the victim's name through investigation. The Florida Supreme Court relied on the U.S. Supreme Court's decision in Florida Star v. B.J.F., finding that the Florida statute barring any media publication of a rape victim's name was unconstitutional because it was "overbroad"; that is, it punished the media even if, for example, the name of the victim was already known in the community. It also found that the statute was "underinclusive" in that it punished only media publication and not acts by a private person.