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128 U. Pa. L. Rev. 544 (1979-1980)
Rape Victim Shield Laws and the Sixth Amendment

handle is hein.journals/pnlr128 and id is 556 raw text is: [Vol. 128:544 RAPE VICTIM SHIELD LAWS AND THE SIXTH AMENDMENT J. ALEXANDER TANFORD t AND ANTHONY J. BOCCHINO if I. INTRODUCTION In the last few years, forty-six jurisdictions have made efforts to protect rape victims from the humiliation of public disclosure of the details of their prior sexual activities. In most states the legislatures have passed shield laws restricting a criminal defendant's ability to present to the jury evidence of past sexual history.' In one instance, the same result has been reached by an appellate court ruling.2 Late in 1978, the United States Congress followed this trend and enacted rule 412 of the Federal Rules of Evidence.3 While these laws vary in scope and procedural details, they share the features of declaring an end to the presumptive admissibility of such evidence and of restricting the situations in which a defendant will be allowed to bring the victim's sexual history to the attention of the jury. Almost unanimously, the literature of the last few years has encouraged these laws and attempted to justify any adverse consequences to the defendant by claiming that the state's interest in protecting rape victims is sufficiently important to overcome any constitutional objections.4 The changing moral climate in f Assistant Professor of Law, Indiana University. A.B. 1972, Princeton Uni- versity; J.D. 1976, LL.M. 1979, Duke University. f Associate Professor of Law and Director of Clinical Studies, Duke Univer- sity; Visiting Associate Professor of Law, Temple University. B.A. 1969, Bucknell University; J.D. 1972, University of Connecticut. The authors are deeply indebted to Ginny Young, former secretary and admin- istrative assistant to Duke's clinical program (now a law student herself), for her tireless work in the preparation of this manuscript. We also wish to recognize the research assistance of Paula Jamell and Russell Fox at Duke University and the preliminary research done by Al Faustino and Ron Jarvis, former Duke students. 1 Rape victim shield laws are aimed at eliminating a common defense strategy of trying the complaining witness rather than the defendant. The result of this strategy was harassment and further humiliation of the victim as well as discour- aging victims of rape from reporting the crimes to law enforcement authorities. State v. Williams, 224 Kan. 468, 470, 580 P.2d 1341, 1343 (1978). See Appendix, infra, for a list of state statutes as they existed in the fall of 1979. Forty-five states had some sort of statute relating to the admissibility of evidence concerning the sexual conduct of rape complainants. 2In State ex rel. Pope v. Superior Court, 113 Ariz. 22, 545 P.2d 946 (1976), the state supreme court declared that evidence of a rape victim's character for chastity would, subject to limited exceptions, be inadmissible. 3 The Privacy Protection for Rape Victims Act of 1978, Pub. L. No. 95-540, 92 Stat. 2046 (1978), was passed on October 28, 1978 and, as FED. R. EviD. 412, became effective 30 days later. 4 See sources collected in note 22 infra. (544)

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