wilkinson ali - rape shield.pdf
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The Intersection of Victims’ Rights and Rape Shield
Presented By: Ali Wilkinson, Violence Against Women
Project Manager
1 © 2013 National Crime Victim Law Institute
Overview & Learning Objectives
After participating in this webinar, you will be able to:
• Understand the basic legal landscape with regard to a
victim’s sexual history before and after rape shield legislation
• Think critically about vagaries within the current rape shield paradigm and the risks those pose for victims
• Understand basic motion practice surrounding asserting victim’s rights in the context of rape shield litigation
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History of Rape Shield in the United States
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Image courtesy visitphilly.com
• At common law, admissible to show “character for unchastity” and consent
• Some courts also allowed it to show dishonesty
Pre-1970s
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• Three bases for reform:
• Deterrence effect
• Acquittals
• Probative value of the evidence
• The result….
• Every state and the federal government now has rape shield legislation*
Reform
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Under standard rules of evidence, irrelevant evidence or evidence the probative value of which is outweighed by its potential for prejudice must be excluded
So why rape shield?
But Why Rape Shield?
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• Purpose: To bar inquiries (by defense or prosecution) into a rape victim’s sexual history, absent certain exceptions
• Exceptions:
• Another source of semen/pregnancy/physical injury
• Sexual behavior with the defendant
• To protect federal constitutional rights of defendant
Under any approach if evidence is irrelevant or if its probative value is outweighed by its potential for prejudice, evidence must be excluded
What is Rape Shield Legislation?
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Question
Have you had an instance where, despite the existence of rape shield legislation, the victim’s sexual history came in?
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Navigating the Language of Rape Shield
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Case Studies & Hypotheticals
Exception: Sex with
Defendant
Example: Gagne v. Booker, 680 F.3d 493 (6th Cir. 2012)
Facts Outcome The bigger issues
Why is sex with defendant relevant? yes/yes assumption
Prejudicial v. probative value
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Tactic: It’s not
“sexual behavior”
Example: United States v. Ellerbrock, 70 MJ 314 (C.A.A.F. 2011)
Facts Outcome The bigger issues
Thwarting purpose of rape shield
Inconsistent application – chilling effect
Punishes polyvictims
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New Challenge:
Is it “sexual
behavior”
• Case Example
• Our Online Lives
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Question
Have you ever engaged or assisted in motion practice to protect victims’ rights under rape shield?
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Who Files?
• Most familiar to the court
• Often ably represents victim’s position – BUT interests aren’t always aligned
Prosecutor Victim/Victim’s Attorney
• Able to fully represent
victim’s position without competing interests
• BUT victim may not have the resources/ability/ desire to file
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• Victim has standing • First things first – Rules of Evidence
• Irrelevant • Prejudicial v. probative
• Argue based on the facts • Is covered by rape shield, does not fit within an
exception, etc.
• Argue based on victims’ rights • Defendant’s constitutional rights will not be
harmed
What Does a Motion Look Like?
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• Victim has standing
• Doe v. United States, 666 F.2d 43 (4th Cir. 1981)
• Interlocutory appeal is appropriate
• Balancing cost and inconvenience of delay v. injustice of delay
• Arguments discussed on prior slide
What Does it Look Like on Appeal?
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Receive free technical assistance (e.g., legal research & memoranda). www.ncvli.org | 503-768-6819 | ncvli@lclark.edu
How Can NCVLI Help?
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Stay Up-To-Date on Victim Law
Benefits Include: • Access to a database of case summaries and amicus briefs • Free webinars • Exchange knowledge and ideas with other practitioners
through our online forum and NAVRA listserv
Join Our Membership Alliance!
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www.navra.org
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This project was supported by Grant No. 2012-TA-AX-K030 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.
24 © 2013 National Crime Victim Law Institute
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