Rape shield law

In Australia, all states and mainland territories have rape shield laws that limit the admission of evidence in criminal proceedings where someone is charged with a sexual offence. The principal aims of these laws are to:

• prohibit the admission of evidence of a complainant's sexual reputation;
• prevent the use of sexual history evidence to establish the complainant as a ‘type’ of person who is more likely to consent to sexual activity; and
• exclude the use of a complainant's sexual history as an indicator of the complainant's truthfulness.[2]

In Canadian criminal proceedings in respect of a sexual assault, section 276(1) of the Criminal Code restricts the admissibility of evidence that the complainant has engaged in sexual activity, whether with the accused or with any other person. Such evidence "is not admissible to support an inference that, by reason of the sexual nature of that activity, the complainant (a) is more likely to have consented to the sexual activity that forms the subject-matter of the charge; or (b) is less worthy of belief."[3] The law sets down (in sections 276(2) and 276(3)) strict rules and procedures for determining admissibility of such evidence.[3]

In 1992, legislation amended the Criminal Code to re-establish this rape shield provision with strict guidelines for when and how previous sexual conduct could be used by a defendant at trial. The reform was enacted by Parliament after the 1991 ruling, R. v. Seaboyer had struck down the previously existing rape shield law (enacted in 1982) as unconstitutional. Bill C-49 amended the Criminal Code provisions that govern the admissibility of evidence of sexual activity, refined the definition of consent to a sexual act, and 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 to the defence in sexual offence cases. Bill C-46 was tested in R. v. Mills, and upheld by the Supreme Court in 1999.[4]

In the 2000 decision of R. v. Darrach, the Supreme Court of Canada upheld the law in a case involving the former Ottawa resident Andrew Scott Darrach, who was convicted of sexually assaulting his ex-girlfriend. Darrach was sentenced in 1994 to nine months in jail for the assault. By a 9–0 decision, the court found that of the rape shield provisions in the Criminal Code to be constitutional. The ruling said forcing the accuser to give evidence would invade her privacy and would "discourage the reporting of crimes of sexual violence." In his appeal, Darrach had argued that he had been denied a fair trial because he was unable to raise the fact that he mistakenly thought the incident was consensual. Darrach had argued also that the law unfairly required him to testify at his own trial because the trial judge had held an evidentiary hearing with the jury absent to determine whether an affidavit from Darrach describing his former relationship with the complainant was admissible. Since Darrach had refused to testify or be cross-examined on the affidavit, the trial judge had ruled that evidence inadmissible.[5] The appeal upheld the trial judge's decision.

Sections 44 and 44A of the Evidence Act 2006 sets out rules for propensity evidence about a complainant's sexual experience and reputation in sexual cases.[6] Prior to the 2006 Act, section 23A of the Evidence Act 1908, as amended by the Evidence Amendment Act 1977, set out these rules.[7]

Section 44 protects complainants in prosecutions for sexual offences from certain questions and evidence about their sexual experience and reputation. The starting point is to exclude evidence or questions that relate to the complainant's reputation in sexual matters or to the complainant's sexual experience with a person other than the defendant. However, the judge may permit any evidence or a question about that experience if satisfied that it would be contrary to the interests of justice to exclude it because of its direct relevance to the facts in issue or to the question of the appropriate sentence (the heightened relevance test).[6]

Section 44A provides no evidence of a complainant's sexual experience may be offered in a criminal proceeding unless the other parties have been given notice of the proposed statement, or if every other party has waived the notice requirements, or if the judge dispenses with those requirements. The section also sets out the notice requirements for evidence proposed to be offered in criminal proceedings.[6]

Complainants are equally bound by the law, preventing them introducing evidence about their own sexual experience contrary to sections 44 and 44A.[8]

Evidence of a complainant's sexual experience with the defendant is not subject to the heightened relevance test, although it is still subject to the general relevance test in sections 7 and 8 of the Evidence Act. This has proved to be a contentious issue, with the debate mainly centres on the perceived direct relevance of such evidence. Those in support of extending the rule to cover sexual experience with the 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 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?

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]

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.

• Post-assault treatment of sexual assault victims
• Duluth model

• The National Center for Victims of Crime
• Rape shield laws aren't foolproof
• Is the rape-shield law working?