Wednesday, October 3, 2012
I. Bennett Capers (Brooklyn Law School) has posted Real Women, Real Rape (UCLA Law Review, Vol. 60, 2013) on SSRN. Here is the abstract:
There are several reasons to find rape shield laws troubling. From the point of view of many defense lawyers and civil libertarians, rape shield laws, by curtailing a defendant’s ability to offer evidence of an accuser’s prior sexual conduct, unfairly circumscribe a defendant’s right to confront witnesses and present relevant evidence in his defense. By contrast, rape shield proponents argue that rape shield laws are too weak, and are so riddled with exceptions that they amount to little more than sieves. “Real Women, Real Rape” calls attention to two other problems with rape shield laws, problems which can be traced to the very enactment of rape shield laws, but for the most part have remained hidden, unnoticed, and unremarked upon. The first problem concerns the expressive message implicitly communicated by rape shield laws: that jurors should assume the complainant is a “good girl” and thus deserving of the law’s protection. Because of rape shield laws, any suggestion that women may lead healthy sexual lives is quietly pushed to the side and corseted. In short, the concern is that in pushing for rape shield laws, feminists, victim rights advocates, and prosecutors have reinscribed the very chastity requirement they hoped to abolish. The second problem is what I term expressive message failure, and occurs when a rape shield’s message conflicts with pre-existing rape scripts, those assumptions we have about what rapists look like, what constitutes rape, and most importantly here, what rape victims look like. The article sketches out solutions to these specific problems, and gestures towards a broader solution to tackle other flaws with rape shield laws.