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

Torres, Josh, Law and Psychology Review

"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)

I. INTRODUCTION

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." (17) The exception that allows the admission of complainant's prior sexual history to show that someone other than the accused was the source of semen, other bodily fluid, and the cause of the injury is generally permitted because it allows the defendant an opportunity to attack the complainant's credibility and demonstrate that the charges may be false. (18) The exception permitting evidence that is necessary in order to protect a defendant's constitutional right is justified because a statute cannot carry more legal weight than the Constitution. (19) The purposes of rape shield laws also vary. One purpose is to maintain the focus of the respective trial on the alleged rapist's culpability and not on the victim's sexual history. (20) A second purpose is that it is generally thought that a victim's sexual history, no matter how promiscuous, is irrelevant to the accused's culpability. (21) A third purpose is that these laws make it more likely a victim will come forward and report rape. (22) Considering some recent statistics which put the number of victims who choose not to report sexual assaults during the average year as high as 59%, rape shield laws can be an important tool to increase reporting. (23)

However, to date, no study has examined the psychological effects of the different types of rape shield laws on a complainant's signals (24) to a prosecutor and a prosecutor's ability to determine whether an indictment should be filed in light of those signals. This article examines this very concept under a signaling game analysis, which is a branch of game theory. Part II of the article details what is known about false rape allegations. Part III examines the role and responsibilities of a prosecutor when an allegation is reported. Part IV introduces and explains signaling games, and subsequently provides the analysis of each type of rape shield law under this area of game theory. Part V provides the conclusion as to whether, under this evaluation and within the respective jurisdictions, prosecutors are more or less likely to bring an indictment of rape and whether there is an increased or decreased probability of false rape allegation indictments when the alleged rape is not witnessed.

II. FALSE RAPE ALLEGATIONS

Up until the 1950s and through much of the mid-1970s, the antiquated common law definition of rape was still in use throughout the United States. (25) Under the common law, rape was defined as the "unlawful carnal knowledge of a woman, by …

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Publication information: Article title: Rape Shield Laws and Game Theory: The Psychological Effects on Complainants Who File False Rape Allegations. Contributors: Torres, Josh - Author. Journal title: Law and Psychology Review. Volume: 32. Publication date: Spring 2008. Page number: 135+. © 2008 The Law & Psychology Review. COPYRIGHT 2008 Gale Group.

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