Special Issues Raised by Rape Trials

25 Pages Posted: 9 Feb 2010

See all articles by Aviva Orenstein

Aviva Orenstein

Indiana University Maurer School of Law

Date Written: 2007


Rape cases reveal core conflicts in the space where evidence, law, and ethics intersect. Such conflicts include the tension between victim protection and the rights of the accused, the challenges attorneys face trying to negotiate the demands of sensitive and emotionally difficult cases, and the role of the law in counteracting stereotypes and bias.

In this essay, I will begin by presenting the cultural milieu surrounding rape allegations, briefly reviewing attitudes towards perpetrators and victims. Next, I will attempt to capture the legal zeitgeist concerning rape, focusing on two recent phenomena: the reversal of false rape convictions based on DNA evidence and the advent of big-media rape trials involving various celebrities. After establishing this groundwork, I will turn to three separate issues of ethics and evidence that arise regularly in rape trials: (1) naming the victim, (2) shielding the victim's sexual history, and (3) civil settlements of rape charges. I will use the fairly recent case of Kobe Bryant, a famous basketball player accused of rape, to illustrate the evidence and ethical issues in all three of these discrete categories.

My examination of the intersection between evidence law and ethics in rape trials demonstrates the limits of the law to effectuate practical change or to transcend, let alone improve, social attitudes. Many have observed that the legal solutions to problems inherent in rape trials, such as rape shield laws and rules against disclosing victims' names, have had only limited effect. Because the issues raised here implicate entrenched social attitudes, legal solutions are bound to be incomplete. Such beliefs are filtered through a legal system that is structured around competition and legal gamesmanship. Therefore, the defense lawyer's strategy must be understood within the context of social beliefs about rape as transmitted by the adversary system. We can limit evidence, but we cannot legislate attitudes, and playing upon prejudices, particularly those of the American juror, is the trial attorney's bread and butter. Therefore, to analyze the role of evidence and ethics in a rape trial, we must understand rape myths and the cultural baggage that comes with our notions of rape. Also, we must analyze assumptions about victims and perpetrators, men and women, and the chaste and the deviant.

Keywords: Evidence, Rape, False Allegations, Rape Shield, Sex Crimes, Propensity, Rule 413

Suggested Citation

Orenstein, Aviva, Special Issues Raised by Rape Trials (2007). Ethics and Evidence Symposium, Fordham Law Review Vol. 76, 2007, Available at SSRN: https://ssrn.com/abstract=1549847

Aviva Orenstein (Contact Author)

Indiana University Maurer School of Law ( email )

211 S. Indiana Avenue
Bloomington, IN 47405
United States
812-855-8736 (Phone)

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