Friday, August 5, 2011
This Article explores the curious jurisprudence of sexual patterns and how it constructs female sexuality. In modern rape law, the “unchaste character inference” expressly prohibited by the rape shield endures. Though the boundaries that circumscribe appropriate sexual conduct have shifted over time, courts persist in making normative judgments about women’s sexuality. Cloaked in the legitimizing rhetoric of sexual patterns, retrograde notions of deviancy are substituting for rational deliberation on the question of consent. As rape shield law enters its fourth decade, it continues to defy reason, both in application and in theory. The proposed evidentiary approach promises to improve judicial decision making in rape cases, while reorienting the law toward the female sexual subject and the contingency of her consent.