The Rape Shield Law

This has been in the press quite a bit over the last year thanks to Kobe Bryant. It is something I've had to deal with on a few occasions in my practice, but not in the manner that one would think. In general, Rape Shield laws were created to prevent evil defense lawyers like me from asserting that a woman walking down the street, yanked in to an alley and raped asked for it due to the fact that she had sex with just about every guy who ever approached her.

Personally, I couldn't imagine many cases where involving stranger rape (as opposed to date rape) where I would begin to consider putting a woman's sexual history on trial. I'm not saying I can't think of a scenario, because I'm sure someone will tell me one, but in general, it is hard to imagine one where such a defense would go very far.

Now, in cases of date rape, I happen to think that a woman's sexual history is a little more relevant, if we are dealing with an issue of friends or acquaintances who have sex and trying to determine when and how the woman said "no." Don't get me wrong, I recognize that "no means no," and I certainly don't quarrel with that. On the other hand, it seems that there frequently exists quite a bit of ambiguity in these situations. One person says one thing ("I said no"), the other says something else ("she was into the whole time, but freaked out afterwards"). I'm not sure how relevant sexual history is in that situation, but imagine if the person claiming rape had a history of having sex and then feeling bad about it, or coming back to the other party angry about the encounter. In other words, it would possibly be illuminating to know a little about the background of the person making the complaint.

Certainly, that has been the situation in the Kobe case, where we clearly have a complainant with a plethora of issues: suicide attempts, numerous partners, celebrity, and undoubtedly other things that we don't know about (and may never know about). Let's just imagine that all of this information was kept out of the Kobe trial, and all we had was her simple assertion that she went into his room and he attacked her, without any context of her prior or subsequent actions, or of her mental state before, during and after the event. Certainly, it would be hard to believe that Kobe received a fair trial under these circumstances.

I have a theory, especially in these "consent" or "date rape" cases (as opposed to a case of identification, or where there is admittidly no relationship of any kind between the two parties), about the rape shield laws. I could easily see my next closing argument going something like this:

We have heard the complainant come in here and make her accusation, that the defendant had sex with her even though she said no. Let's be clear, the law exists that I am not allowed, pursuant to the rape shield law, to find out about her background and determine whether or not she has done anything like this before. I cannot discover anything about previous partners by her, I cannot present any evidence that would show what her personality is like, other than how she appears here in court. Now, it is clear that the manner in which someone presents themselves in court does not necessarily reflect the manner they are outside of court, the DA has noted this while talking about the fact that the defendant may look nice here, but out of court he was a predator. Well, even though the law is what the law is, you should not hold it against my client. The fact that my client is not allowed to find out about the person's background does not mean that you should assume only the best - that she is of unimpeachable character, because we haven't heard anything to the contrary. Rather, you could just as easily presume the opposite. The law gives you contradictory orders - don't look into the complainant's background, and presume the defendant innocent. Therefore, while we can't speculate about her background, we can presume that the defendant is innocent and give him the benefit of that doubt and find him not guilty, having no particular reason to trust this witnesses account due to a law that has been created to otherwise protect her.

Now, I've never tried this one before, and it clearly needs some refinement, but on the other hand, it seems something like this could work out.

Any thoughts?