EvidenceProf Blog

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

Thursday, January 31, 2008

Evidence And Ethics 4: Professor Orenstein's Special Issues Raised by Rape Trials

I first came across the writings of Indiana University School of Law Professor Aviva Orenstein when I discovered her article, "My God!":  A Feminist Critique to the Excited Utterance Exception to the Hearsay Rule, 85 Cal. L. Rev. 159 (1997), while preparing my own article on the exception.  She has written a number of other excellent articles and sponsored the terrific symposium, Children as Witnesses: A Symposium on Child Competence and the Accused's Right to Confront Child Witnesses.  Her latest article is her contribution to the Ethics and Evidence Symposium, Special Issues Raised by Rape Trials. 

Professor Orenstein offers this description of the article:

"In analyzing the role of evidence and ethics in rape trials, this brief essay considers the cultural milieu surrounding rape allegations, examining assumptions about victims and perpetrators, men and women, the chaste and the deviant.   After describing the legal zeitgeist concerning rape, focusing on the reversal of false rape convections based on DNA evidence and the advent of the big-media rape trials involving various celebrities, the essay turns to three separate issues of ethics and evidence that arise regularly in rape trials:  (1) naming the victim; (2) shielding the victim's sexual history; and (3) civil settlements of rape charges.  For all three of these discrete categories, the essay uses the fairly recent case of Kobe Bryant, a famous basketball player accused of rape, to illustrate the evidence and ethical issues.  Both the Rules of Evidence and the Rules of Professional Conduct are demonstrably unhelpful in assisting attorneys to confront these problems.   The analysis highlights the limits of the law to effectuate practical change or to transcend, let alone improve, social attitudes.  This is true not only because of the cultural forces promoting rape myths, but because of changes in communication, whereby the internet and blogosphere can release information about the victim and the case, even if the rules of ethics and evidence might withhold such information.  The essay therefore concludes that protecting the name, identity, and sexual history of the victim via rules of evidence and ethics, seems futile, at least in the high profile case involving celebrities."

Furthermore, the article notes that "[t]he intersection of evidence and ethics in rape trials raises questions not only of the limits of law but also questions concerning the rights of the accused and the balance between protection of the victim and paternalism towards her."  Orenstein's article is an incredibily even-handed account of the issues, and it addresses issues that are increasingly important with the 24 hour news cycle and the whittling away of the privacy of both alleged victims and assailants.



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