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By Jill K. Sanders, Esq.

In New York, there are limitations about the cross-examination of complaining witnesses about their sexual history. This evidentiary rule is commonly referred to as the “rape shield law.” It prohibits a criminal defendant, charged with a sexual crime, from questioning the complainant about his or her prior sexual relationships, unless the evidence is relevant to the crime charged.

What Is the Law in New York?

New York’s rape shield laws are codified in Criminal Procedure Law §§ 60.42 and 60.43. According to Criminal Procedure Law § 60.42, evidence of a complainant’s sexual history is not admissible in a prosecution for a sex offense, with several exceptions. The evidence may be admissible if it:

• shows the accused and the complainant engaged in sexual conduct on prior specific instances, or
• proves the complainant was convicted of a prostitution offense within the three previous years, or
• rebuts evidence introduced by the prosecutor of the complainant’s lack of sexual conduct during a specific time period, or
• refutes evidence by the prosecutor that the complainant’s disease or pregnancy was caused by the defendant or that the defendant was the source of biological evidence recovered, or
• is relevant and admissible in the interests of justice, as pre-determined by the court.

Another provision of the law, Criminal Procedure Law § 60.43, prohibits the use of evidence of a victim’s sexual history by the prosecution in any case, with one exception. The evidence can be used if a judge determines the evidence is relevant and admissible in the interests of justice.

How Rape Shield Laws Protect Victims

Lawmakers in New York enacted the state’s rape shield law to encourage sexual assault victims to come forward. By sparing them from a character assault by defense attorneys, victims are more likely to report sexual crimes.

Prior to the enactment of the law, a defendant was permitted to present all evidence of a complainant’s sexual history. This was often meant to have a jury see the complainant as unchaste and promiscuous. If a complainant had a vast sexual history, could he or she be trusted to tell the truth about this instance? A criminal defense attorney would try to convince a jury the answer to that question is “no.”

How Rape Shield Laws Effect Defendants

Various constitutional challenges have been raised by criminal defendants. One argument is that such laws violate their right to confront their accuser. However, most courts have held that a right to confront one’s accuser doesn’t mean that a defendant can introduce evidence not relevant to the criminal charge. While some attorneys would like to argue that a complainant’s sexual history is always relevant, New York’s law makes clear that there must be more.

Another argument raised has been that the rape shield law may violate a defendant’s right against self-incrimination. In some cases, an offer of proof must be made to a judge in order to prove the evidence’s relevance to the charges. In that offer of proof, the defendant may have to admit to conduct in advance of trial. Such constitutional challenges are routinely denied by courts across the country.

Are Rape Shield Laws Outdated?

Most rape shield laws in the United States were passed in the 1970s and 1980s. New York’s laws came into effect in 1975. Now, four decades later, the public’s understanding of sexuality has changed. Today, the public has a broader view of whether someone should be judged for their sexual history. Many jurors would not judge a complainant for having prior consensual sexual relationships. Certainly, the average juror today would have heard the phrase “no means no” and have a basic understanding of the concept of consent.

Rape shield laws do give some victims a level of comfort in coming forward to report such crimes. A victim may not wish to discuss his or her sexual history, regardless of modern views on sexuality. Many still wish to keep the details of their sexual lives private. To the extent sexual history has nothing to do with whether a victim consented or not, such details may not be relevant to share with a jury.

Recently, efforts have been made by legislators to reform New York’s rape shield law. Legislators have been trying to amend the exception that allows introduction of evidence of a complainant’s prior prostitution convictions. Other efforts have been to expand the shield to cover sex trafficking victims

References:

• NY Criminal Procedure Law § 60.42
• NY Criminal Procedure Law § 60.43
• Alexandra Villarreal, “New York to consider changing rape shield law to protect sex workers,” The Guardian (online). Available at: https://www.theguardian.com/us-news/2018/nov/30/new-york-rape-shield-law-sex-trafficking-workers (last accessed Dec. 18, 2018).