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Editor: Colin Miller
Univ. of South Carolina School of Law

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Monday, October 22, 2007

Penn State Rape Case Reveals Penn's Rape Shield Law Is Stricter Than Federal Law

Penn State running back Austin Scott is charged with raping a 22 year-old fellow student.  A newspaper recently published a story, which indicated that around four years ago, Scott's accuser made similar allegations against a student at Moravian College in Bethlehem, Pennsylvania.  The student-defendant in that case was found "not guilty" of rape, and the jury deadlocked on lesser charges (there was no re-trial).

Scott's attorney has claimed that this evidence of the accuser's "troubled past" will be admissible at trial as it goes to her credibility.  I don't see how Scott's attorney could be correct. 

In federal cases involving sexual misconduct, Federal Rule of Evidence 412, the "rape shield" law, prevents evidence that proves that the alleged victim engaged in other sexual behavior and evidence that proves the alleged victim's sexual predisposition.  In criminal sexual misconduct cases, there are exceptions that apply when (A) someone other than the accused is alleged to be the source of the alleged victim's injuries, etc., (B) the prior sexual acts were between the accused and the alleged victim, and consent is at issue, or (C) the evidence's exclusion would violate the accused's Constitutional rights.

Pennsylvania, however, has not adopted Rule 412.  Instead, Pa. C.S. Section 3104 is similar to the federal rape shield law in terms of excluding evidence, but it only has one exception, exception (B) above.  Thus, the Pennsylvania rule ostensibly excludes more evidence than the federal rule.  And because the alleged past sexual act at issue did not involve the accused, it would be inadmissible at trial.

UPDATE:  While Section 3104 does not state the other 2 exceptions, I have found them both applied in Pennsylvania case law.  Commonwealth v. Fernsler, 715 A.2d 435 (Pa.Super. 1998), notes that appellate courts in Pennsylvania have carved out an exception to its rape shield law when exclusion of evidence would violate the defendant's rights under the Confrontation Clause. And in Commonwealth v. Stansbury, 640 A.2d 493 (Pa. Super. 1994), the court found that evidence that someone other than the accused was responsible for the alleged victim's injuries, etc. can be admissible as an exception, but only when a strict test (above and beyond the federal test) is satisfied.

-CM

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