Lis on Law: Rape Shield Laws

Lis Wiehl
It happened in the William Kennedy Smith and Kobe Bryant rape cases. And it's happening in the Duke lacrosse players' rape case. Another woman who reported a rape lost her privacy and anonymity, both of which are supposed to be protected by our rape shield laws. Adopted by every state in the 1970's, rape shield laws were passed to protect the integrity and reputation of rape victims. These laws limit the introduction of evidence about a victim's sexual history or past conduct.

The reason for rape shield laws is straightforward. Before the laws were passed, it was everyday practice for defense lawyers to attack rape victims on the stand by painting them as promiscuous liars. They painted this picture by asking questions about a victim's past sexual history solely for the purpose of exposing to the jury some past dalliance that would make her claim of rape less credible. Alleged victims were, in effect, raped all over again in the courtroom. But what relevance, really, is a victim's prior sexual history to the question of whether she was raped? None.

So rape shield laws were lauded as a means of protecting the rape victim. The laws say that evidence of the victim's specific sexual conduct is irrelevant unless it's direct evidence of the source of injury, semen, pregnancy or disease that's at issue in the rape case. In some states, rape shield laws even ban testimony on what a woman was wearing at the time of the alleged rape.

And rape shield laws were created, in part, so that victims would be more likely to come forward to report rapes. The thinking is that fewer victims will report rapes if they know their sexual and personal histories will be fodder for aggressive defense tactics.

Sounds good in theory. But the law only protects victims from the introduction of certain evidence during trial. There is no protection from pretrial publicity.

And some of the most high-profile rape cases in the past 30 years have proven to be the least forgiving for the alleged victims — outside of the courtroom. We all saw the William Kennedy Smith rape case on television. It didn't matter much that the alleged victim's face was covered by a blue dot at the trial; her name had already been released to the public by the media without her consent! In the Kobe Bryant case, we saw that rape shield laws didn't protect the alleged victim. The judge in the Bryant case had allowed the victim to use a pseudonym and ordered attorneys to protect her identity. But the same judge mistakenly released her name on the Internet and accidentally e-mailed court documents about her sexual behavior to the media! The woman's personal data was available to all of us on websites that published her name, photos, e-mail address and home address. Soon after the release of this information, the victim dropped the charges and the judge dismissed the case against Bryant.

Now, in the case of the Duke lacrosse players, various media outlets splashed the alleged victim's name, address, and picture on their websites. FOX News Channel hasn't revealed the accuser's identity, but you can get it on the Internet with a ten-second search. The message from much of the media is that the First Amendment trumps rape shield laws and the victim's privacy. Right legal interpretation, wrong moral choice.

And what about the privacy of the accused? Photos of the two Duke lacrosse players indicted for rape bombard our television and print media. Even if they are acquitted at trial (if there is a trial), those two will always be known for having been accused of raping a 27-year-old stripper. That's not fair either. There are reasons to be especially protective of identities in rape cases. Being identified as an alleged rapist sounds a lot worse than being called a thief.

My suggestion? Expand the rape shield laws to protect the identity of the victim and the accusers until conviction, if there is a conviction. Under this expansion of the law, prosecutors would be 'gagged' from revealing the identity of the accuser and the accused before trial. That would curtail the pre-trial publicity that is often so devastating for both sides of the case. Prosecutors who leak such information pre-trial would face automatic dismissal of the case — now that's a heavy sanction for any prosecutor. Some of the media would still lean on the First Amendment and publish the identity of both accuser and accused pre-trial and pre-conviction, but other outlets would not. A step in the right direction, at least.

Lis Wiehl joined FOX News Channel as a legal analyst in October 2001. She is currently an associate professor of law at the University of Washington School of Law. Wiehl received her undergraduate degree from Barnard College in 1983 and received her Master of Arts in Literature from the University of Queensland in 1985. In addition, she earned her Juris Doctor from Harvard Law School in 1987. To read the rest of Lis's bio, click here.