Abstract
Rape is a common crime with uncommonly difficult evidentiary issues. Consequently, it has been singled out for special treatment in the law. Recently enacted rape shield laws seek to protect rape victims from harassing cross-examinations that often accompany rape trials. These statutes purport to limit the circumstances when the defendant might inquire into otherwise relevant evidence of the victim's sexual history. There is a serious question whether such statutes intrude on a defendant's sixth amendment right to confrontation. A line of Supreme Court cases, most notably Davis v. Alaska, establishes that a defendant's right to cross-examination may be limited only when the state has a legitimate interest to protect and when the state interest outweighs the defendant's sixth amendment rights. The law protecting the state interests must be narrowly tailored for the purposes intended. In Globe Newspaper Co. v. United States, the Supreme Court held that the two state interests most commonly used to justify rape shield statutes-victim protection and increased victim reporting-were insufficient interests to overcome a newspaper's first amendment rights to report a rape trial. In spite of Davis and Globe, most rape shield statutes have been upheld in the face of sixth amendment challenges. The statutes have been upheld either because draftsmen have left wide discretion to the courts or because the courts have read such discretion into the statute. In exercising discretion, courts have largely reverted back to the balancing standard, "probative value versus prejudice," stripping rape shield statutes of substantive value and thwarting efforts of rape law reformers.
Recommended Citation
Simonsen, Gregory M.
(1985)
"Rape Victim Confrontation,"
Utah Law Review: Vol. 1985:
No.
3, Article 3.
Available at:
https://dc.law.utah.edu/ulr/vol1985/iss3/3