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70 Geo. Wash. L. Rev. 51 (2002)
From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law

handle is hein.journals/gwlr70 and id is 63 raw text is: From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law Michelle J. Anderson* Abstract Historically, a rape defendant at trial could offer evidence that the com- plainant was previously unchaste in order to discredit her testimony. Professor Michelle Anderson calls the conditioning of a rape victim's vindication on her sexual virtue the chastity requirement in rape law. By the early 1980s, almost every jurisdiction in this country had passed a rape shield law, which curtailed defendants' abilities to admit complainants' sexual histories. Too often, how- ever, Anderson argues, these legal shields function as sieves, particularly in acquaintance rape cases when the complainant is deemed promiscuous. Cru- cial holes in shields admit sexual history evidence when the complainant has been intimate with the defendant before, when the defendant claims that he held a reasonable but mistaken belief as to her consent, or when the complain- ant has previously engaged in a pattern of sexual conduct, prostitution, or other promiscuity. Anderson contends that rape shields have failed to defend these women because the law has maintained crucial aspects of the chastity requirement. It is time for the law to reject the ancient norms of that require- ment fully, Anderson argues, and to embrace, instead, a sexuality license, which would protect rape complainants from suffering the negative legal con- sequences that follow judgments about their prior sexual lives. Anderson pro- poses a new rape shield statute designed to end the continued admission of irrelevant and prejudicial evidence of the complainant's sexual history in rape trials and to vindicate the new norms of the sexuality license. Contents Introduction ............................................................. 52 I. The Chastity Requirem ent ........................................ 60 A. The Virginity Requirement and English Common Law .......... 61 * Associate Professor of Law, Villanova University School of Law. J.D., Yale Law School; B.A., University of California at Santa Cruz. This Article was delivered at the Rutgers School of Law, Camden, 2001 Faculty Workshop Series and at the 2002 American Association of Law Schools Criminal Justice Annual Meeting panel entitled New Perspectives on Sexual As- sault. I am grateful for the feedback I received at both places, particularly from John Becker- man, David Cruz, Steven Friedell, Dan Filler, and Rand Rosenblatt. I thank my insightful colleagues Leslie Book, Steven Chanenson, Frank Rudy Cooper, Ann Juliano, Greg Magarian, Gavin McCormick, Nazareth Pantaloni, Michele Pistone, Anne Poulin, Teemu Ruskola, and Leti Volpp. All errors remain mine. I also thank the law students who performed invaluable re- search assistance on this project: Beth Cameron, Katie Crawford, Polly Hayes, Kim Larson, Alexis Palascak, Shanna Peterson, Chris Schaub, Michael Taub, and Becky Watt. I am grateful for the generous support I received for this work from the administration and library staff at Villanova University School of Law. February 2002 Vol. 70 No. 1

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