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Rape Shield Law

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Rape Shield Laws

Name of Student

Institutional Affiliation

Rape Shield Laws

Definition

A rape shield law is a law that denies a defendant the ability to a cross-examine rape complainant or evidence about their conduct in sexual behavior in the past (Portlock, 2007). It may also be used to refer to a law that prohibits media sources from publishing the identity of an individual who is accused of rape.

This law was established so that it could eliminate cases whereby an individual is tried using their clothing, sexual behavior or attitude showed in the past. However, the application of this law varies from one state to another. There some states that require that the rape complaint to have taken place with a specified time (Spohn & Horney, 2013). This difference results from the fact that states apply the ‘fresh complaint’ doctrine in different ways. A fresh complain is one in which the complainant reasonably, promptly and voluntarily makes the complaint once the sexual abuse has taken place.

Why States have Enacted Rape Shield Laws

Rape shield laws have been passed in most of the states so as to ensure that rape victims are protected from psychological and emotional trauma that could result from their narration of their sexual history while in the witness stand. There are several cases where rape victims have failed to report and pursue such charges due to their fear of humiliation.

The rape shield laws enacted in these states serve three principal purposes. First, they prohibit the release of evidence on the sexual reputation of the complainant (Hilsheimer, 2009). This is one of the ways through which the laws protect and safeguard the privacy of the complainant. They ensure that the complainant is not intimidated using their past sexual history and records.

The second reason as to why states have enacted the rape shield laws is prevent cases of using the sexual history of the complainant as evidence and to brand them criminals or one who can easily consent to a sexual activity (DaSilva, 2008). That has played a critical role in eliminating possibilities of bias that could result from the application of the history of the sexual activity of the complainant.

The third reason that has motivated stated to pass rape shield laws is eradicating the use of the sexual history of the complainant as an indicator of their faithfulness (Orenstein, 2007). Before the establishment of the rape shield laws, the sexual history of the complainant could be used as evidence of their faithfulness. However, this has ceased since the passing of the rape shield laws. This is critical to the courts because it makes the trial process just, free, and fair.

In-camera Hearing

An in-camera hearing is usually completed before the court embarks on determining if the testimony given in a court is allowed. Basically, in-camera is borrowed from a Latin term that refers to ‘in chambers’. As such, it is defined as a hearing or discussion that is conducted with the judge in the chamber in privacy or once the jurors are out of the courtroom (Elrod, 2011). It is normally conducted when sensitive or critical information needs to be obtained from the complainant. Sometimes such information is introduced to the public. In others cases, the judge keeps custody of it for use in the case.

An in-camera hearing is either on or off the record. However, in most cases they are recorded. The primary reason as to why in-camera hearings are used is shielding the jury from possible cases of bias that could result from matters that are characterized by controversy (Elrod, 2011). They are also used in the protection of the privacy of the people who are involved in giving evidence in a case. Such in-camera hearings are common in cases that involve matters such as guardianship, child custody, adoption, as well as cases of child abuse. The jury decides the case once it has completed listening to any possible evidence that is contained in the in-camera hearings.

Verdict

In the case of the case brief presented, the court should allow the defendant to present testimony on the history of the sexual activity of the victim. That is because the sixth amendment rights of confrontation and compulsory process requires any individual who is accused of such crimes to be granted their right to introduce their evidence (Douglass, 2005). However, this is subject to the requirement that the probative value of the case at hand outweighs the prejudicial effect.

In some cases, sexual activity history is relevant since it is a source of critical evidence concerning the case. As such, the statutes contained in the constitution contain absolute prohibitions. In this case, the shield laws are allowed to run afoul of the constitution so as to alter the standards set for the admissibility of evidence. The jury should then proceed to decide the case depending on the evidence that the victim presents through their sexual activity history. As such, I would suggest that the court observes the constitution and the shield laws and allows the defendant to present testimony on the history of the sexual activity of the victim.

References
DaSilva, L. (2008). The Next Generation of Sexual Conduct: Expanding the Protective Reach of Rape Shield Laws to Include Evidence Found on MySpace. Suffolk J. Trial & App. Adv., 13, 211-253.

Douglass, J. G. (2005). Confronting Death: Sixth Amendment Rights at Capital Sentencing. Columbia Law Review, 1967-2028.

Elrod, L. D. H. (2011). 'Please Let Me Stay': Hearing the Voice of the Child in Hague Abduction Cases. Oklahoma Law Review, 63(4)

Hilsheimer, L. M. (2009). But She Spoke in an Un-ladylike Fashion: Parsing through the Standards of Evidentiary Admissibility in Civil Lawsuits after the 1994 Amendments to the Rape Shield Law. Ohio St. LJ, 70, 661.

Orenstein, A. (2007). Special issues raised by rape trials. In Ethics and Evidence Symposium, Fordham Law Review (Vol. 76).

Portlock, K. S. (2007). Status on trial: The racial ramifications of admitting prostitution evidence under state rape shield legislation. Columbia Law Review, 1404-1436.

Spohn, C., & Horney, J. (2013). Rape law reform: A grassroots revolution and its impact. Springer Science & Business Media.

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