Academic journal article
By Hines, Patrick J.
Notre Dame Law Review , Vol. 86, No. 2
As a society we look to punish rape offenders harshly. But doing so is only part of the story. While every victim's experience is different, a common narrative emerges. Months after the event, a rape victim's attacker is on trial. The defense seeks to introduce witness testimony that she (1) has had several previous sexual partners, was seen dancing provocatively at a bar that night, and kissed another man the same evening. Under the state's rules of evidence, the testimony is presumptively excluded, and the attacker is convicted. He goes to jail, but that is not the end of the story. The victim finds her life in shambles. After leaving the hospital, she is unable to sleep for months, always reliving the event in her mind. She is unable to work because she is constantly exhausted and cannot focus. She loses her job. She looks to her partner for support, but he leaves her when they find out she has contracted a sexually transmitted disease from her attacker. She finds herself without a job, without a home, and without a way to pay for treatment.
Seeking justice, she sues her attacker for compensatory damages. But this time, the defense is allowed to broadly probe her personal life. During discovery she is compelled to disclose the number of sexual partners she has had and the intimate details of her relationships. At trial, the defense introduces these details, including evidence that she has been the victim of previous sexual abuse, and argues that the injury caused by her attacker is less than she claims because of her previous experience. The defense also seeks to introduce the same witness testimony excluded in the criminal trial. Her attorney objects, but the court finds that the bar for relevance is low and that her previous consent with others makes her consent more likely with her attacker. It further finds that any mental injury caused by her previous abuse is relevant to reduce her recovery for mental injury caused by her attacker. This is the plight of rape victims in many states' civil courts.
The Supreme Court of Nevada recently held that, unlike its federal counterpart, (2) Nevada's rape shield statute (3) applies only to criminal proceedings. (4) However, the court also limited discovery of a civil plaintiffs sexual past by stressing the analysis under Nevada's equivalent of Federal Rule of Civil Procedure 26(c)(1), providing that a court may issue protective orders to prevent "annoyance, embarrassment, oppression, or undue burden or expense." (5) By doing so, the court implicitly recognized that the embarrassment of having to disclose irrelevant and prejudicial details of one's personal life can hinder not only criminal prosecutions, but legitimate civil actions as well.
This recognition highlights the important purpose of rape shield laws: the encouragement of reporting by preventing embarrassment and the prevention of reliance on misconceived notions about sexual misconduct. (6) In furtherance of this purpose, the federal government and almost all states (7) have some form of evidentiary protection for rape victims in criminal proceedings, but only a few jurisdictions have adopted protections for civil plaintiffs. (8)
This Note argues that the purpose of rape shield statutes requires that protections be extended beyond just criminal complainants and applied in the context of civil actions. Criminal prosecutions often provide inadequate redress for victims, even when successful. Civil actions, on the other hand, provide a variety of advantages for victims that can, to the extent possible, help compensate them for the unique damages they suffer from rape and from other sexual misconduct. Extending rape shields furthers the goal of holding offenders responsible for sexual misconduct by encouraging reporting and preventing a defendant's reliance on myths embraced by courts and juries to escape responsibility.
Part I of this Note provides a brief overview of the history of rape law in America and the myths and cultural biases pursuant to which evidence of prior sexual history was freely admitted in rape prosecutions. …