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Description of the sources
According to Tuerkheimer (1989), the federal government passed the rape shield laws in order to control the cross-examination about a witness’s sexual past.
These laws have been passed in 48 states, and are divided into four classes namely: Michign, California, Arkansas and Federal approaches. Tuerkheimer xamines the problems posed by shield laws, such as reputation evidence, rebuttal proof and constitutionality issues. As a result, the author suggests the endorsement of concession based on the proof of prior sxual conduct by a witness in a case involving rape, in the event that the defendant’s constitutional rights were at a risk.
The author further examines the reluctance with which prosecutors tackle rape cases that are not violent, and the cross-examnation process that requires inquiries to be made on past consensual sexual activities of the complaining witness. A process that leads to publication of the private aspect of the witness, which in turn results in the reluctance of rape victims reporting the crimes.
Casarino (1996) examines the possibilities for litigating acquaintance rape cases in the civil courts as a measure to prevent under-reporting of such cases. The civil courts are aimed at encouraging rape victims to speak out. Their reluctance could be attributed to exposure of personal life in criminal courts due to shortcomings in the shield laws. The author also examines the process of civil suits, and the procedural merits and limitations of such suits in rape cases.
In his note, Anderson (2001) examines the conditioning of rape victims’ vindiction on sexual virtue, whereby the rape defendant can provide evidence that the witness was unchaste, prior to the assault, with the view to discrediting her testimony. Rape shield law preventing the defendant from admitting complainant’s sexual history was passed in the 1980s, though Anderson identifies the shield as having loopholes, which are used in cases where the witness is seen as promscuous.
According to Anderson (2001), the loopholes in the shield relay sexual history evidence in instances when the witness has had prior sexual encounters with the defendant, when the defendant asserts that he assumed that the complainant has given her consent, or when the complainant has in the past involved herself in prostitution, or other promiscuity. He suggests that the rape victims should be protected from the harmful legal procedures that dig into their previous sexual lives.
In the journal article “Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape”, Oberman examines the increasing rate of teenagers engaging in sexual practices. In his study, he identifies the challenges posed in criminal justice as a result of minors engaging in sexual activities.
He identifies that about 50% of teenagers in the united states have sexual intercourse by the time they turn sixteen, which makes thepractice illicit since the age of consent in many states is sixteen. As a result, every sexual encounter of the minors constitutes to statutory rape, which can be translated to about 7.49 million incidents of statutory rape, annually.
Concerns about the law with this kind of rape are raised since it is impracticle to prosecute all the cases involving sexual intercourse of teenagers below the age of sixteen. Society also deems this behavior as typical of adolescents, and some view it as necessary in their development; as a result, it becomes a challenge to view the trend as criminal.
Davis (1984) looks at the problems faced by rape victims, leading to their reluctance when reporting and prosecuting the offense. This reluctance is because the complainant feels like the defendant, due to admission of evidence of her sexual history, which is admissible, despite its insignificance to the matters at trial.
He also examines the attempts made to decrease such problems encountered when reporting and prosecuting cases of rape, such as the passing of statutes that limit the introduction of evidence of the victim’s previous sexual conduct.
References
Anderson, M. J. (2001). From Chastity Requirement To Sexuality License: Sexual Consent and a New Rape Shield Law. George Washington Law Review, Forthcoming .
Casarino, C. (1996). Civil Remedies in Acquaintance Rape Cases. BU Pub Int Law Journal , 185, 197-198.
Davis, E. M. (1984). Rape Shield Statutes: Legislative Responses to Probative Dangers. Journal of Urban & Contemporary Law , 29(1), 129.
Oberman, M. (2000). Regulating Consensual Sex with Minors: Defining a Role for Statutory Rape. Symposium on Urban Girls: Legal Issues Facing Adolescents and Teens , 703, 721–722.
Tuerkheimer, F. (1989). Reassessment and Redefinition of Rape Shield Laws. Ohio State Law Journal , 50(4), 1245-1274.
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