wilkinson ali - rape shield.pdf

The Intersection of Victims’ Rights and Rape Shield

Presented By: Ali Wilkinson, Violence Against Women

Project Manager

1 © 2013 National Crime Victim Law Institute

Overview & Learning Objectives

After participating in this webinar, you will be able to:

• Understand the basic legal landscape with regard to a

victim’s sexual history before and after rape shield legislation

• Think critically about vagaries within the current rape shield paradigm and the risks those pose for victims

• Understand basic motion practice surrounding asserting victim’s rights in the context of rape shield litigation


History and Basics of Rape Shield


History of Rape Shield in the United States


Image courtesy visitphilly.com

• At common law, admissible to show “character for unchastity” and consent

• Some courts also allowed it to show dishonesty

Pre-1970s


• Three bases for reform:

• Deterrence effect

• Acquittals

• Probative value of the evidence

• The result….

• Every state and the federal government now has rape shield legislation*

Reform


Under standard rules of evidence, irrelevant evidence or evidence the probative value of which is outweighed by its potential for prejudice must be excluded

So why rape shield?

But Why Rape Shield?


The Basics of Rape Shield


Image courtesy flickr.com

• Purpose: To bar inquiries (by defense or prosecution) into a rape victim’s sexual history, absent certain exceptions

• Exceptions:

• Another source of semen/pregnancy/physical injury

• Sexual behavior with the defendant

• To protect federal constitutional rights of defendant

Under any approach if evidence is irrelevant or if its probative value is outweighed by its potential for prejudice, evidence must be excluded

What is Rape Shield Legislation?


Question

Have you had an instance where, despite the existence of rape shield legislation, the victim’s sexual history came in?


Navigating the Language of Rape Shield


Case Studies & Hypotheticals

Exception: Sex with

Defendant

Example: Gagne v. Booker, 680 F.3d 493 (6th Cir. 2012)

Facts Outcome The bigger issues

Why is sex with defendant relevant? yes/yes assumption

Prejudicial v. probative value


Tactic: It’s not

“sexual behavior”

Example: United States v. Ellerbrock, 70 MJ 314 (C.A.A.F. 2011)

Facts Outcome The bigger issues

Thwarting purpose of rape shield

Inconsistent application – chilling effect

Punishes polyvictims


New Challenge:

Is it “sexual

behavior”

• Case Example

• Our Online Lives


Question

Have you ever engaged or assisted in motion practice to protect victims’ rights under rape shield?


Protecting Rights Under Rape Shield


Motion Practice

Who Files?

• Most familiar to the court

• Often ably represents victim’s position – BUT interests aren’t always aligned

Prosecutor Victim/Victim’s Attorney

• Able to fully represent

victim’s position without competing interests

• BUT victim may not have the resources/ability/ desire to file


EARLY

When to File


Preserve appeal!

• Victim has standing • First things first – Rules of Evidence

• Irrelevant • Prejudicial v. probative

• Argue based on the facts • Is covered by rape shield, does not fit within an

exception, etc.

• Argue based on victims’ rights • Defendant’s constitutional rights will not be

harmed

What Does a Motion Look Like?


• Victim has standing

• Doe v. United States, 666 F.2d 43 (4th Cir. 1981)

• Interlocutory appeal is appropriate

• Balancing cost and inconvenience of delay v. injustice of delay

• Arguments discussed on prior slide

What Does it Look Like on Appeal?


Questions?


Receive free technical assistance (e.g., legal research & memoranda). www.ncvli.org | 503-768-6819 | [email protected]

How Can NCVLI Help?


Stay Up-To-Date on Victim Law

Benefits Include: • Access to a database of case summaries and amicus briefs • Free webinars • Exchange knowledge and ideas with other practitioners

through our online forum and NAVRA listserv

Join Our Membership Alliance!

© 2013 National Crime Victim Law Institute

www.navra.org

23

http://www.navra.org/

This project was supported by Grant No. 2012-TA-AX-K030 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.


wilkinson ali - rape shield.pdf

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