Sexting as ‘Sexual Behavior’ Under Rape Shield Laws

16 Pages Posted: 27 Oct 2017 Last revised: 1 May 2018

See all articles by JoAnne Sweeny

JoAnne Sweeny

University of Louisville Louis D. Brandeis School of Law

John Slack

University of Louisville, Louis D. Brandeis School of Law, Students

Date Written: October 26, 2017

Abstract

As part of the proliferation of online communications, there has been a global increase in sexually explicit social media messages and consensual sexting among teenagers and adults of all ages. As a result, these kinds of electronic communications have begun to be used as evidence in a wide variety of court cases, including sexual harassment and discrimination cases. However, courts have only begun to consider whether such communications, particularly sexting communications, should be usable to impeach a sexual assault complainant, or whether these kinds of communications should be protected under rape shield laws as sexual “conduct” or “behavior.” This article traces the history of rape shield laws in four common law countries: the United States, Canada, the United Kingdom, and Australia, and, using the history and purpose of these laws, argues that sexting should be protected under rape shield laws to protect sexual assault victims from unnecessary questioning about evidence that is likely to be embarrassing, prejudicial, and irrelevant to the case.

Keywords: Sexting, Social Media, Rape Shield

Suggested Citation

Sweeny, JoAnne and Slack, John, Sexting as ‘Sexual Behavior’ Under Rape Shield Laws (October 26, 2017). 11 Int'l J. Cyber Criminology 246 (2017); University of Louisville School of Law Legal Studies Research Paper Series No. 2018-2. Available at SSRN: https://ssrn.com/abstract=3059866

JoAnne Sweeny (Contact Author)

University of Louisville Louis D. Brandeis School of Law ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

John Slack

University of Louisville, Louis D. Brandeis School of Law, Students ( email )

Wilson W. Wyatt Hall
Louisville, KY 40292
United States

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