rape shield laws | Definition

Doc's CJ Glossary by Adam J. McKee


Course: Introduction / Criminal Law

Rape shield laws are laws that prohibit asking the victim of rape about her past sexual history in court in order to attack her character.

Rape shield laws, also known as sexual assault evidence laws, were created to protect victims of sexual assault from being further traumatized in court. These laws prohibit the admission of evidence about a victim’s past sexual behavior, history, or reputation in order to prove the victim’s sexual behavior or predisposition, except in certain limited circumstances.

Before the implementation of rape shield laws, defense attorneys would often use a victim’s sexual history to attack their character and credibility, arguing that because they had engaged in sexual activity in the past, they were more likely to have consented to the sexual activity in question or that their testimony was less reliable. This tactic often resulted in the victim being re-victimized in court and discouraged many victims from reporting sexual assault.

Rape shield laws vary by jurisdiction, but generally, they prevent the admission of evidence about a victim’s sexual history unless it is relevant to the case and its probative value outweighs the potential harm to the victim. For example, evidence of prior sexual conduct may be admissible if it is used to prove someone else’s motive, to show that the victim had a prior relationship with the accused, or to prove the source of semen or injury.

The Federal Rules of Evidence provide for rape shield protections in federal courts, and many states have enacted similar laws. In addition, some states have expanded the scope of their rape shield laws to include protections for victims of other forms of sexual violence, such as child sexual abuse and human trafficking.

The Model Penal Code (MPC), a model criminal code created by the American Law Institute, includes rape as a crime of sexual assault. The MPC has no explicit rape shield provisions, but it does allow for the exclusion of evidence of a victim’s sexual history or character in cases where its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury.

In addition to rape shield laws, many jurisdictions have established victim-centered practices and procedures to protect the rights and dignity of sexual assault survivors throughout the legal process. These may include providing victims with support services, such as counseling and legal advocacy, allowing victims to testify via closed-circuit television, and implementing trauma-informed training for judges, lawyers, and other court personnel.

Overall, rape shield laws are an important tool for protecting the rights and dignity of sexual assault survivors in the criminal justice system. By limiting the admission of evidence about a victim’s sexual history, these laws help to prevent further victimization and encourage victims to come forward and seek justice.

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Last Modified: 07/17/2021


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