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Rape Shield Laws:
Who Really Needs Protecting?

by Mary E. Bahl
art/Marty Kelley

IMAGINE THIS: you're a young woman living in a large city in 1970. One night, you're out on a date with a man. He wants sex; you don't. He becomes more and more insistent until he finally becomes violent, forcing you to the ground and raping you. After he leaves, you go directly to the police station to report the crime. When you speak to the police, they keep asking you questions: Did you have sex with this man before? How many sexual partners have you had in the past? Did you invite him into your apartment? What were you wearing?

Somehow you get past this line of humiliating questions and the accused rapist is brought to trial. When you are put on the stand, the defending attorney asks you many of the same questions, questions about your past relationships. He produces evidence that you've had a couple of sexual relationships before dating the man who raped you. He makes the case that since you've had sex before, you must have been "asking for it". The charges against the young man are dismissed.

Of all the crimes that exist, one of the most feared is rape. It's violent, it's humiliating, and it invades a person in a way that no other crime can. In an ideal case, when a rape victim went to the police to report the crime committed against her (rape victims are usually women), she would be given a sympathetic ear, a prompt medical examination, and the full assistance of the law to prosecute the rapist. But even as recently as 20 to 30 years ago, this was not often the case.

Fortunately, there was change. Starting in the 1970s, most states in the U.S. started passing "rape shield laws". The purpose of these laws was to keep a woman's sexual history from being brought up in court during a rape trial. Juries therefore couldn't use this history against a woman. These laws kept a woman from being treated like a criminal during the trial against her rapist.

Society is much different than it was back in 1970, however. Pre-marital sex is much more common and women are less likely to be judged for having sex. Women who have been raped are much more likely to report the crime and the rapists are much more likely to stand trial. According to the Rape, Abuse and Incest National Network (RAINN), rapes and sexual assaults declined more than 17 percent between 1995 and 1996. Due to the increasing awareness about rape and society's changing attitudes towards women, there are some who believe that the rape shield laws are no longer necessary and should be repealed. Some of these people believe that rape shield laws keep an accused rapist from receiving a fair trial and that the laws are discriminatory against men.

The recent trial of Oliver Jovanovic, a student at Columbia University, is an illustration of the anti-rape shield law viewpoint. Jovanovic met a female Barnard College student in an online chat room. They kept an online correspondence going for six months before meeting for a date in November 1996. During the date, she and Jovanovic went back to his apartment where she removed her clothes and allowed Jovanovic to tie her to a futon. The Barnard student claims that Jovanovic then held her forcibly for 20 hours, torturing and sodomizing her. When she was finally let go, the Barnard student had Jovanovic arrested for rape.

The twist in the case came when the lawyers for Jovanovic claimed that the Barnard student had many discussions about sadomasochism (S&M) with Jovanovic and expressed a desire to engage in that activity with Jovanovic. The lawyers had transcripts of all of the two parties' emails to each other so as to prove that the Barnard student consented to the activities. The Barnard student claimed under oath that she never discussed any interests in S&M with Jovanovic.

Even though Jovanovic had the email transcripts as evidence that the Barnard student had wanted S&M activities to take place, Jovanovic was forbidden from submitting these transcripts in court because of the rape shield laws of the state. Since many of the transcripts described the Barnard student's past sadomasochistic relationships, they were considered part of her sexual history and therefore inadmissible in court. Jovanovic was convicted of rape, but he has since filed an appeal.

People who want rape shield laws repealed say that the Jovanovic case is a clear example of abuse of the laws and how it turns rape into a "his word against hers" situation. On the other hand, there is one obvious point to be made: even if the Barnard student had expressed an interest in and an initial consent to sadomasochistic activities with Jovanovic, she is still allowed to change her mind when the activities commence. Even if she had consented to be tied up and "tortured", she still should have been free to stop at any time (the S&M community uses "safe words", words that indicate to all parties involved that the activity must stop immediately). If Jovanovic had continued the sexual contact after she had told him to stop, he would have been guilty of raping her. Even if someone has a history of engaging in a particular sexual activity, especially one that is seen as controversial, he or she is not immune to rape or assault.

Another trial where rape shield laws did not assist the accused rapist is the much-publicized sportscaster Marv Albert trial. Accused of assault and battery after biting his mistress during a sexual encounter, Albert and his lawyers wished to bring witnesses to testify that his lover had a history of falsely accusing men of assault and rape. The judge denied this request, since any mention of the victim's past sexual history was protected under the rape shield laws. However, Albert's mistress was permitted to call as a witness a few of Albert's ex-lovers to testify to his "strange" sexual habits.

It would seem after viewing these two cases that rape shield laws can prevent a man accused of rape from defending himself in court, as he is entitled to do under the law. Those who want the laws repealed say that this is a case of reverse discrimination and sexism towards men. This may well be true in these and other cases. But the fact remains that many victims of rape and sexual assault are victimized once again in court by charges that their past sexual histories make them "loose" and "having asked for it". Even though society's attitudes towards women, sex and rape are changing for the better, those changes are coming slowly. Old attitudes have kept rapists from getting punished, but old laws may prevent accused rapists (who are, after all, still innocent until proven guilty) from defending themselves against false accusers. Rape shield laws may still be a necessity, but they may need some rethinking and reworking so that true justice may be served consistently.

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