The Seductive Power of Patriarchal Stories

Taslitz Galaxy Symposium, 2014

Indiana Legal Studies Research Paper No. 303

24 Pages Posted: 23 Sep 2014

See all articles by Aviva Orenstein

Aviva Orenstein

Indiana University Maurer School of Law

Date Written: September 1, 2014

Abstract

In his book Rape and the Culture of the Courtroom, the late Professor Andrew Taslitz analyzed the patriarchal stories that permit lawyers, judges, and juries to rely on sexist stereotypes and rape myths to discount victims’ accounts of rape. To honor Professor Taslitz and to incorporate his brilliant scholarship, this essay examines recent caselaw regarding Rape Shield, focusing on cases where the defendant has argued that admitting the victim’s reputation, sexual history, or proclivities is so essential to a fair trial that, using the words of Fed. R. Evid 412(b)(1)(C), “exclusion would violate the defendant’s constitutional rights.” It examines the extent to which this exception functions as a vehicle for circumventing the purpose and social policy of rape shield. The essay responds to the issues posed in Gagne, which involved the exclusion of the victim’s history of consensual participation in group sex, arguing that that the victim’s prior sexual conduct should be excluded by rape shield. The essay ends by posing a more difficult case regarding evidence that the accused had in the past consented to interracial sex. In cases where the victim is white and the accused is black, the rape shield question is complicated by the racist history of rape trials in America; some information about the proclivities of the victim may be necessary to counterbalance racist assumptions by the jury that a white woman would never consent to sex with a black man.

Keywords: rape shield, federal rules of evidence, feminism, patriarchal stories, constitutional right to confront witnesses, constitutional right to present a complete defense

Suggested Citation

Orenstein, Aviva, The Seductive Power of Patriarchal Stories (September 1, 2014). Taslitz Galaxy Symposium, 2014, Indiana Legal Studies Research Paper No. 303, Available at SSRN: https://ssrn.com/abstract=2499597

Aviva Orenstein (Contact Author)

Indiana University Maurer School of Law ( email )

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Bloomington, IN 47405
United States
812-855-8736 (Phone)

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