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Australia
A rape shield law is a law that limits the ability to introduce evidence about the past sexual activity of a
Evidence
Canada complaint in a sexual assault trial, or that limits cross-examination of complainants about their past sexual
Part of the law series
New Zealand behaviour in sexual assault cases.[1] The term also refers to a law that prohibits the publication of the
Types of evidence
identity of an alleged rape victim.
Philippines Testimony · Documentary · Real (physical) ·
Digital · Exculpatory · Inculpatory ·
United States
Australia [ edit ] Demonstrative · Eyewitness identification ·
Genetic (DNA) · Lies
Identification of alleged rape
In Australia, all states and mainland territories have rape shield laws that limit the admission of evidence in
victims by media outlets Relevance
criminal proceedings where someone is charged with a sexual offence. The principal aims of these laws Burden of proof · Laying a foundation ·
See also
are to: Materiality · Public policy exclusions ·
References Spoliation · Character · Habit · Similar fact
prohibit the admission of evidence of a complainant's sexual reputation; Authentication
External links
prevent the use of sexual history evidence to establish the complainant as a ‘type’ of person who is Chain of custody · Judicial notice ·
Best evidence rule ·
more likely to consent to sexual activity; and
Self-authenticating document ·
exclude the use of a complainant's sexual history as an indicator of the complainant's truthfulness.[2] Ancient document ·
Hague Evidence Convention

Canada [ edit ] Witnesses

Competence · Privilege · Direct examination ·
In Canadian criminal proceedings in respect of a sexual assault, section 276(1) of the Criminal Code Cross-examination · Redirect · Impeachment ·
restricts the admissibility of evidence that the complainant has engaged in sexual activity, whether with the Proffer agreement · Recorded recollection ·
Expert witness · Dead Man's Statute
accused or with any other person. Such evidence "is not admissible to support an inference that, by reason
Hearsay and exceptions
of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual
in English law · in United States law ·
activity that forms the subject-matter of the charge; or (b) is less worthy of belief."[3] The law sets down (in Confessions · Business records ·
sections 276(2) and 276(3)) strict rules and procedures for determining admissibility of such evidence.[3] Excited utterance · Dying declaration ·
Party admission · Ancient document ·
In 1992, legislation amended the Criminal Code to re-establish this rape shield provision with strict Declaration against interest ·
guidelines for when and how previous sexual conduct could be used by a defendant at trial. The reform Present sense impression · Res gestae ·
Learned treatise · Implied assertion
was enacted by Parliament after the 1991 ruling, R. v. Seaboyer had struck down the previously existing
Other common law areas
rape shield law (enacted in 1982) as unconstitutional. Bill C-49 amended the Criminal Code provisions that
Contract · Tort · Property · Wills,
govern the admissibility of evidence of sexual activity, refined the definition of consent to a sexual act, and trusts and estates · Criminal law
restricted the defence that an accused had an honest but mistaken belief that the accuser had consented. · ·
The 1995 Supreme Court of Canada 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
Rape
to the defence in sexual offence cases. Bill C-46 was tested in R. v. Mills, and upheld by the Supreme
Types
Court in 1999.[4]
Acquaintance rape · Campus rape ·
Corrective rape (LGBT victims) ·
In the 2000 decision of R. v. Darrach, the Supreme Court of Canada upheld the law in a case involving the
Drug-facilitated rape · Date rape · Gang rape ·
former Ottawa resident Andrew Scott Darrach, who was convicted of sexually assaulting his ex-girlfriend. Genocidal rape · Gray rape ·
Darrach was sentenced in 1994 to nine months in jail for the assault. By a 9–0 decision, the court found Live streaming rape · Marital rape ·
Prison rape · Rape chant · Serial rape ·
that of the rape shield provisions in the Criminal Code to be constitutional. The ruling said forcing the
Statutory rape · Unacknowledged rape ·
accuser to give evidence would invade her privacy and would "discourage the reporting of crimes of sexual Rape by deception
violence." In his appeal, Darrach had argued that he had been denied a fair trial because he was unable to
Effects and motivations
raise the fact that he mistakenly thought the incident was consensual. Darrach had argued also that the law Effects and aftermath · Pregnancy from rape ·
unfairly required him to testify at his own trial because the trial judge had held an evidentiary hearing with Rape trauma syndrome · Causes ·
the jury absent to determine whether an affidavit from Darrach describing his former relationship with the Post-assault mistreatment · Weinstein effect ·
Sociobiological theories · Rape culture
complainant was admissible. Since Darrach had refused to testify or be cross-examined on the affidavit,
By country
the trial judge had ruled that evidence inadmissible.[5] The appeal upheld the trial judge's decision.
Afghanistan · Belgium · China ·
Democratic Republic of the Congo · Egypt ·
New Zealand [ edit ] Finland · France · Germany · India · Pakistan ·
Papua New Guinea · Philippines ·
Sections 44 and 44A of the Evidence Act 2006 sets out rules for propensity evidence about a complainant's Saudi Arabia · South Africa · Sweden ·
sexual experience and reputation in sexual cases.[6] Prior to the 2006 Act, section 23A of the Evidence Act United Kingdom · United States

1908, as amended by the Evidence Amendment Act 1977, set out these rules.[7] During conflicts
Armenian genocide · World War II
Section 44 protects complainants in prosecutions for sexual offences from certain questions and evidence (Eastern Front · Italian campaign ·
Imperial Japan) · Occupation of Germany /
about their sexual experience and reputation. The starting point is to exclude evidence or questions that
Japan / Poland · Liberation of France / Serbia ·
relate to the complainant's reputation in sexual matters or to the complainant's sexual experience with a Kashmir conflict · Vietnam War ·
person other than the defendant. However, the judge may permit any evidence or a question about that Sri Lankan Civil War ·
Bangladesh Liberation War ·
experience if satisfied that it would be contrary to the interests of justice to exclude it because of its direct
Sierra Leone Civil War · Bosnian War ·
relevance to the facts in issue or to the question of the appropriate sentence (the heightened relevance Rwandan genocide · Congo Wars ·
test).[6] Darfur genocide · ISIL · Syrian civil war ·
Tigray War · Russian invasion of Ukraine ·
Section 44A provides no evidence of a complainant's sexual experience may be offered in a criminal Hamas-led attack on Israel
proceeding unless the other parties have been given notice of the proposed statement, or if every other Laws
party has waived the notice requirements, or if the judge dispenses with those requirements. The section Marital rape laws by country ·
Marry-your-rapist law · Rape shield law ·
also sets out the notice requirements for evidence proposed to be offered in criminal proceedings.[6]
False accusation of rape · Rape investigation ·
Rape kit · Sexual consent in law
Complainants are equally bound by the law, preventing them introducing evidence about their own sexual
Related articles
experience contrary to sections 44 and 44A.[8]
Anti-rape movement · History of rape ·
Date rape drug · Rape statistics ·
Evidence of a complainant's sexual experience with the defendant is not subject to the heightened
Rape by gender (Rape of males) ·
relevance test, although it is still subject to the general relevance test in sections 7 and 8 of the Evidence Anti-rape device · Rape crisis centre ·
Act. This has proved to be a contentious issue, with the debate mainly centres on the perceived direct Rape investigation · Rape myth ·
relevance of such evidence. Those in support of extending the rule to cover sexual experience with the Rape pornography · Rape and revenge films ·
Rape fantasy · Rape schedule · Rape threat
defendant argue that evidence of previous sexual experience between the complainant and defendant
should not lead to an implication that the complainant is more likely to agree to the sexual activity on Portals: Law portal
another occasion. Those opposed argue that the existence of a prior sexual relationship between the · ·
complainant and the defendant will often be, or inevitably is, directly relevant.[9]

In 2017, Law Commission began its second statutory review of the Evidence Act. In its March 2018 issues paper, it asked several questions about the
operation of section 44, especially in light of two court cases:[9]

B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 – What admissibility rule should apply to sexual disposition evidence?
Best v R [2016] NZSC 122, [2017] 1 NZLR 186 – Should false and/or allegedly false complaints be treated as evidence of veracity, sexual
experience, or as both?

Philippines [ edit ]

Republic Act No. 8505, or the Rape Victim Assistance and Protection Act of 1998, was enacted around the time when the Philippine Congress began
moving away from the treatment of rape as a mere crime against chastity which may be subject to compromise. Section 6 of RA 8505 provides that
"evidence of complainant’s past sexual conduct, opinion thereof or of his/her reputation" shall not be admitted in prosecutions for rape. The exception is
when such evidence is material and relevant to the case, but evidence shall be admitted "only to the extent that the court finds" so.[10]

United States [ edit ]

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 in
the scope of sexual behaviour shielded and time limits of the shield. Many states do not permit any evidence relating to the past sexual behaviour of the
victim. This encompasses evidence of specific instances of the victim's prior or subsequent sexual conduct including opinion evidence or reputation
evidence.[11]

The Violence Against Women Act of 1994 created a federal rape shield law.[12] The military has incorporated the rape shield law into Military Rules of
Evidence, Rule 412.[13] The military's rape shield law also applies to Article 32, pre-trial proceedings.[14] A recent news article, however, has accused
defense attorneys of violating rape shield protections during a pre-trial proceeding.[15]

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-mails 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 [ edit ]

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 alleged victim.[dubious – discuss] 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.[16]

In Cox Broadcasting Corp. v. Cohn 420 U.S. 469 (1975), the U.S. Supreme Court ruled unconstitutional a Georgia statute that imposed civil liability
on media for publishing a rape victim's name. Cox's television station in Atlanta, WSB-TV, 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., 491 U.S. 524 (1989), 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 Court 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.

See also [ edit ]

Post-assault treatment of sexual assault victims

Duluth model

References [ edit ]

1. ^ "Rape Shield Evidence and the Hierarchy of Impeachment" . 9. ^ a b "Issues Paper 42 - Second Review of the Evidence Act 2006" (PDF).
2. ^ Australian Government: ALRC: 20. Matters Outside the Uniform Evidence New Zealand Law Commission. March 2018. Retrieved August 29, 2018.
Acts - Rape shield laws This article incorporates text by the New Zealand Law
3. ^ a b "Criminal Code" . Government of Canada justice Laws Website. Commission available under the CC BY 4.0 license.
Government of Canada Ministry of Justice. Retrieved November 1, 2017. 10. ^ "Republic Act 8505: Rape Victim Assistance and Protection Act of 1998" .
4. ^ Nicole Baer. "Striking the Balance in Sexual Assault Trials". Justice February 13, 1998.
Canada. 1 (1). 11. ^ Rape Shield Statutes March 2011—accessed at National District Attorneys
5. ^ Supreme Court upholds rape-shield law Erin Anderssen The Globe and Association [1] Retrieved June 19, 2011.
Mail, Ottawa October 13, 2000. 12. ^ Factsheet: The Violence Against Women Act from The White House.
6. ^ a b c "Section 44 -- Evidence Act 2006" . New Zealand Legislation Online. 13. ^ Military Rules of Evidence, Rule 412
Retrieved July 27, 2018. 14. ^ Manual for Courts-Martial United States (2012), 405(i).
7. ^ "Section 23A – Evidence Act 1908" . New Zealand Legislation Online. 15. ^ Steinhauer, Jennifer (September 20, 2013). "Navy Hearing in Rape Case
Retrieved August 26, 2018. Raises Alarm" . The New York Times. Retrieved September 21, 2013.
8. ^ For example: K (CA640/2016) v R, 2017 NZCA 336. 16. ^ New Directions from the Field: Victims Rights and Services for the 21st
Century (Chapter 13), accessed October 16, 2012.

External links [ edit ]

The National Center for Victims of Crime

Rape shield laws aren't foolproof
Is the rape-shield law working?

Categories: Criminal procedure Canadian criminal law United States criminal law Laws regarding rape

This page was last edited on 5 September 2023, at 13:31 (UTC).

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