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."
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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)
PART 28. PRIOR SEXUAL ACTIVITY OR REPUTATION AS EVIDENCE
(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
representative.
(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.
http://www.ilga.gov/legislation/BillStatus.asp?DocNum=3794&GAID=10&DocTypeID=HB&SessionID=76&GA=96
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9 comments:
The excess use of "victim" in the legislation might actually give a good lawyer a way to nullify the law. Since only "victims" are protected by this law, and the plaintiff's victimhood is not legally a fact, it doesn't apply!
Druk, I am absolutely amazed that a law would use that terminology. It just shows how much work we have to do.
You make a good point, but one that, I am afraid, judges would reject. The argument would be she has to prove she's a real "victim" first before the law is applicable. I'd love to see a judge interpret it that way.
My accuser threatened to sue me in Civil court when I kept bringing up her past history of making false accusations before trial.
At the time I thought Bring It On! I'd LOVE to defend myself on that one.
This is insidiously evil.
How are laws like this getting passed?
Who was responsible for passing this laws?
How do we find out if such laws are being proposed in our own state, and how to organize ourselves to prevent it from happening?
"How are laws like this getting passed?"
It's all happening under the radar. New Jersey passed one in its state assembly a few months ago by a vote of 75-0! These things usually aren't even in the news -- reporters don't understand it, and the legislators don't care about it.
The problem is, these "reforms" keep coming and coming. Guess what the rationale is? When the Federal Rule extending the Rape Sheild Law to civil actions was passed, the Advisory Committee that spearheaded it “expressed its hope that this protection ‘against invasions of privacy, potential embarrassment, and unwarranted sexual stereotyping’ will 'encourage victims to come forward.'"
Get it? UNDERREPORTING! It's always the justification! Since we'll never be able to disprove it, they'll keep pushing through "reforms" like this that have the effect of hurting innocent men and boys.
”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.”
Curious and disturbing.
Is this part of an effort to give women who do not have strong criminal cases to make to seek to simply go after men financially instead?
I believe we’ve seen a preview of things to come in McNulty v. Roethlisberger.
Only, in that case, Andrea McNulty’s past sexual history with Roethlisberger, and her friends testimony regarding her boasting of sex with him could not be kept out via the misapplication of any Rape Shield laws.
Also, with the Kobe Bryant case, we saw that as the criminal case was in full collapse, Katelyn Farber opted for a civil action instead.
I’m not particularly knowledgeable with regard to civil law, but what is the standard of proof required that one has experienced an injury or lost for which the civil courts can be used to seek a remedy? It seem that with McNulty there was never even a police report made that would indicate that anything had happened between the two.
If there is no need for any proof of the alleged crime, this would seem to open it wide open to untold levels of abuse. Any woman who got made at a lover could just take him to civil court claiming that he had raped her and caused her injury and resultant financial loss. Evidence of the nature of their prior sexual history could possibly be excluded, allowing her to claim he did something she did not wish to have happen to her, and she’s been suffering ever since (oh, and that she is going to need some open-ended amount of financial remuneration to make it better).
That woman might take unsubstantiated (and even unreported) allegations of rape straight to civil court, by-passing the higher standard for conviction, was bad enough. That they’re now actively adding on the Rape Shield protections for civil actions seems unconscionable.
I suppose with police, prosecutors, and event he press becoming increasingly aware of FRAs and therefore justifiably more suspicious, this was the predictable work-around for the SGI to see that woman making false claims can still have a way to harm their victims.
I’d wager we will be seeing quite e few more McNulty and Farber type cases wherein cases dropped by LE, or even cases never reported to LE are take to civil court instead (of course, I’m really “going out on a limb” with that prediction[/snark]).
Meanwhile, Crystal Mangum gets a free pass for falsely accusing several innocent college boys of rape.
In the wake of Duke the situation is getting EVEN WORSE for the falsely accused. There seems to be no way to turn this around.
Archivist, you are a lawyer
I don't quite understand: don't all countries have constitution with human rights and due process?
Since the Magna Carta? Clause 39 (clause 39 in the 1215 charter), a right to due process.
So no constitutional court, World Court, whatever can strike down such laws?
Yep, that's clearly unconstitutional.
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