From Chastity Requirement To Sexuality License: Sexual Consent and a New Rape Shield Law

Abstract:     
Historically, a rape defendant at trial could offer evidence that the complainant was previously unchaste in order to discredit her testimony. Professor Michelle Anderson calls the conditioning of a rape victim's vindication on her sexual virtue the "chastity requirement" in rape law. By the early 1980s, almost every jurisdiction in this country had passed a rape shield law, which curtailed defendants' ability to admit complainants' sexual histories. Too often, however, Anderson argues, these legal shields function as sieves, particularly in acquaintance rape cases when the complainant is deemed promiscuous. Crucial holes in shields admit sexual history evidence when the complainant has been intimate with the defendant before, when the defendant claims that he held a reasonable but mistaken belief as to her consent, or when the complainant has previously engaged in a pattern of sexual conduct, prostitution, or other promiscuity. Anderson contends that rape shields have failed to defend these women because the law has maintained crucial aspects of the chastity requirement. It is time for the law to reject the ancient norms of that requirement fully, Anderson argues, and to embrace, instead, a sexuality license, which would protect rape complainants from suffering the negative legal consequences that follow judgments about their prior sexual lives. Anderson proposes a new rape shield statute designed to end the continued admission of irrelevant and prejudicial evidence of the complainant's sexual history in rape trials and to vindicate the new norms of the sexuality license.

Accepted Paper Series