Wednesday, January 19, 2011

Rape shield laws being extended to civil actions

Illinois last year became the latest state to enact a rape shield law for civil actions. By my count, fewer than 15 states have such laws, but the number is growing, and it is happening without any fanfare or publicity.  Rape shield laws have been enacted in all states for criminal trials, but until recently, hardly any states had such laws for civil actions (lawsuits for monetary damages).

Basically, rape shield laws preclude the admission at rape trials of evidence offered to prove that any victim engaged in other sexual behavior with persons other than the defendant.

Rape shield laws too often have been abused, sometimes resulting in the conviction of an innocent man or boy. They have been used to exclude relevant evidence that the accuser has made prior false rape claims; that the accuser has used the same modus operandi to seduce other men; and that the accuser is a prostitute.  In one famous case, a woman claimed she was tortured and sodomized; the man claimed the act was consensual. She denied ever expressing interest in sado-masochism, and he tried to introduce emails showing that she had expressed interest in sado-masochism.  The email evidence was excluded, and her lie was permitted to go unrebutted.

Rape shield laws should not be extended to civil actions because, among other things, in civil actions, the plaintiff (the rape accuser) need only prove liability by a preponderance of the evidence, a much lower standard than the criminal beyond a reasonable doubt. To forbid the defendant from presenting potentially relevant evidence of the plaintiff's prior sexual behavior could mean the difference between a defense verdict and a hefty undeserved judgment in the plaintiff's favor.

Below is the Illinois law enacted last year. As if to add insult to injury, the Illinois legislature didn't bother calling the accuser the "plaintiff," Right there, written into the law, the accuser is called a "victim." 
Public Act 096-0307
HB3794 Enrolled LRB096 11666 AJO 22274 b

AN ACT concerning civil law.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 5. The Code of Civil Procedure is amended by adding Part 28 to Article VIII as follows:

(735 ILCS 5/Art. VIII Pt. 28 heading new)


(735 ILCS 5/8-2801 new)

Sec. 8-2801. Admissibility of evidence; prior sexual activity or reputation.

(a) Evidence generally inadmissible. The following evidence is not admissible in any civil proceeding except as provided in subsections (b) and (c):

     (1) evidence offered to prove that any victim engaged in other sexual behavior; or

     (2) evidence offered to prove any victim's sexual predisposition.

(b) Exceptions.

(1) In a civil case, the following evidence is admissible, if otherwise admissible under this Act:

(A) evidence of specific instances of sexual behavior by the victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence; and

(B) evidence of specific instances of sexual behavior by the victim with respect to the person
accused of the sexual misconduct offered by the accused to prove consent by the victim.

(c) Procedure to determine admissibility.

(1) A party intending to offer evidence under subsection (b) must:

(A) file a written motion at least 14 days before trial specifically describing the evidence and stating
the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and

(B) serve the motion on all parties and notify the victim or, when appropriate, the victim's guardian or

(2) Before admitting evidence under this Section the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise.

(740 ILCS 22/212 rep.)

Section 10. The Civil No Contact Order Act is amended by repealing Section 212.