Rape, Truth, and Hearsay

47 Pages Posted: 9 Jan 2017

Date Written: January 5, 2017


Though known among Evidence scholars, Stephens v. Miller is not a ground-breaking case, In applying a rape shield to the “she said, he said” facts before it — she said her acquaintance attempted to rape her, he said they had consensual sex — and in wrestling with whether the application of the rape shield deprived the defendant of his constitutional right to present a defense, the Seventh Circuit en banc opinion forged no new law. Instead, the plurality engaged in a rather straightforward, even predictable, analysis. The opinion’s references to “doggy fashion” sex may give the case some singularity. But as far as cases go, Stephens v. Miller is not canonical. One could even say the case is non-exceptional, at least insofar as any sexual assault case can be described as non-exceptional.

However, it is its very non-exceptionalism that makes Stephens v. Miller an interesting case, and ultimately a curious one. To be sure, Stephens v. Miller is a reminder of the stories courts tell, and that court opinions are never “innocent.” The case also serves as a reminder that a host of problems continue to plague rape shields. But Stephens v. Miller is also a curious case insofar as it signals a missed opportunity, one that could have addressed two of the most intractable problems with rape shields: the sense that they are often over-inclusive, and the sense that they sometimes get in the way of the right rape judgment. By looking beneath the surface of Stephens v. Miller, this article offers a way to rethink rape shields by borrowing from another branch of evidence law: hearsay. The mark of the solution is that it can result in better rape judgments not only in cases like Stephens v. Miller but in an array of other rape cases as well, including a particularly challenging category of cases — cases in which the defendant claims that he made an honest but reasonable mistake as to whether consent existed.

Keywords: Rape, Rape Shield Laws, Consent, Narrative Theory, Hearsay, Expressive Message, Rule 412

Suggested Citation

Capers, I. Bennett, Rape, Truth, and Hearsay (January 5, 2017). Harvard Journal of Law and Gender, Forthcoming, Brooklyn Law School, Legal Studies Paper No. 477, Available at SSRN: https://ssrn.com/abstract=2894556

I. Bennett Capers (Contact Author)

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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