Rape Shield Laws and Game Theory: The Psychological Effects on Complainants Who File False Rape Allegations

Article excerpt

"Better that ten guilty persons escape than that one innocent suffer." (1)

Rape is "an accusation easily to be made ... and harder to be defended by the party accused, tho never so innocent." (2)


In the last 40 years rape laws in the United States have undergone a significant transformation. Starting in the early 1970s, there was an emergence of a rape law reform in the United States. (3) Feminist agenda groups, like the National Organization of Women's Task Force on Rape, lobbied the federal and state legislatures to revise old-fashioned rape laws and to treat rape like other crimes. (4) Surprisingly, unexpected groups aided the move for changes to the antiquated rape laws. As a result of the drastic increases in the number of rapes from the late 1960s to the early 1970s, numerous organizations, including those representing police officers and prosecutors, joined the movement to reform rape laws in an effort to increase the reporting of this crime. (5) It was not long before all of their efforts made a significant impact. One momentous change in United States rape laws was the emergence of rape shield laws. Currently, the federal government, every state, and the District of Columbia have adopted some form of a rape shield law, either by statute or case law, to be applied in criminal cases. (6)

Rape shield laws can be categorized into four different types. Type one is "Legislated Exceptions Laws," which twenty-five states have enacted. (7) Legislated exception laws contain prohibitions on the introduction of evidence concerning opinion and reputation of the victim's sexual predisposition or history unless the evidence offered by the defendant falls within a group of exceptions. (8) The exceptions generally permit the introduction of previously excluded evidence regarding the accusers sexual history to show: relevant instances of prior consensual sex between the accuser and the defendant; that someone other than the defendant was the source of semen, other bodily fluid, and the cause of the injury at issue in the prosecution; complainants pattern of prior sexual conduct; bias or bad motive that could cause fabrication of the sexual assault; the alleged perpetrators belief in the complainant's consent; and instances of prior false accusations of sexual assault by the complainant. (9) Type Two is called the "Constitutional Catch-All Laws," which are modeled after Federal Rules of Evidence 412 and have been enacted in eleven states. (10) These laws bare a strong resemblance to the "Legislative Exceptions Laws" in that they maintain the same provisions but they differ by including one more exception. (11) The exception provides that the evidence offered by the defendant will be admitted if the judge determines that the inadmissibility of such evidence will violate the defendants' constitutional right. (12) Type Three is called the "Judicial Discretion Laws," which provide the judge with the broad discretion to determine whether a victim's sexual history should be admitted into evidence. (13) In jurisdictions using "Judicial Discretion Laws", judges apply a general balancing test. Judges will examine whether the "evidence is relevant and that its probative value is not outweighed by its prejudicial effect." (14) Type Four is called the "Evidentiary Purpose Laws," and in these jurisdictions the admission of a victim's sexual history is dependent upon its purpose in trial. (15) The jurisdictions that apply this type of law are split as to its application. Half of the jurisdictions permit evidence of sexual history to attack credibility but do not permit evidence of sexual history to prove the complainant's consent, while the other jurisdictions apply the law completely opposite. (16)

The reasons and purposes for rape shield exceptions vary. The exception permitting the use of the accusers' prior consensual sex with the accused seems, according to some commentators who oppose the exception, to be based on "the premise that women forfeit their right to say 'no' after voluntarily commencing a sexual relationship. …