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13 N.Y.L. Sch. J. Hum. Rts. 485 (1996-1997)
Rape Shield Laws: Protecting the Victim at the Expense of the Defendant's Constitutional Rights

handle is hein.journals/nylshr13 and id is 505 raw text is: RAPE SHIELD LAWS: PROTECTING THE VICTIM AT THE EXPENSE OF THE DEFENDANT'S CONSTITUTIONAL RIGHTS I. Introduction Rape is a crime differentfrom any other,' in part because of the elements of the crime,2 but mostly because of the historical treatment of the crime and its victims.' Traditionally, a crime is defined by examining what the defendant did and what the intended consequences of the crime were.' Rape is different from this standard definition because courts have almost always focused on the victim and only Susan Estrich, Rape,, 95 YALE L.J. 1087, 1093 (1986) (stating that there is no model statute solution where rape law is involved because the problem is with our interpretationor our understandingof words in the statute such as consent and will and force); see also Sakthi Murthy, Rejecting Unreasonable Sexual Expectations: Limits on Using a Rape Victim's Sexual History to Show the Defendant's Mistaken Belief in Consent, 79 CAL. L. REv. 541, 545 (1991) (stating that people would never consent to assault or murder whereas sex can be consensual). 2See Clifford S. Fishman, Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant's Past Sexual Behavior, 44 CATH. U. L. REv. 709, 713-14 (1995) (stating the elements of most sexual offense crimes are: (1) the defendant engaged in a statutorily designated sexual activity with the complainant, (2) without her consent, and (3) against her will, and noting that some states still require proof of the use of force by the defendant). Estrich, supra note 1, at 1093 (stating that the only way to determine whether there was consent is to examine the victim's response to the situation); see also Catherine L. Kello, Rape ShieldLegislation-Is It Time for Reinforcement?, 21 U. MICH. J. L. REF. 317, 319 (1988) (noting that prior to the adoption of Michigan's rape shield law the judiciary considered rape a sex crime rather than a crime of violence, thereby requiring the victim to prove the attack was against her will and defense attorneys would harass victims by questioning them about their prior sexual activity, thus putting the victim, rather than the defendant, on trial). Estrich, supra note 1, at 1094. 485

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