Rape shield law
A rape shield law in the
United States of Americaand Canadais a law that limits a defendant's ability to cross-examine rapecomplainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim.
In 1992 legislation amended the
Criminal Code of Canadato establish a rape shield law with strict guidelines for when and how previous sexual conduct could be used by a defendant at trial. The reform came in the Parliament after the 1991 ruling, " R. v. Seaboyer". Bill C-49amended the Criminal Code provisions that govern the admissibility of evidence of sexual activity; refined the definition of consent to a sexual act; and restricted the defense that an accused had an honest but mistaken belief that the woman had consented. The 1995 Supreme Court judgment in the case of British ColumbiaBishop Hubert O'Connor (" R. v. O'Connor") led to Bill C-46, which limited the production of a complainant's personal counselling records to the defense in sexual offence cases. Bill C-46 was tested in "R. v. Mills", and upheld by the Supreme Court in 1999. [http://canada.justice.gc.ca/en/dept/pub/jc/vol1/no1/strike.html Striking the Balance in Sexual Assault Trials Justice Canada Vol. No. 1] Nicole Baer Justice Canada web site Last Updated: 2005-10-20]
In the 2000 decision of "
R. v. Darrach", the Supreme Court of Canadaupheld the law in a case involving former Ottawaresident Andrew Scott Darrach, who was convicted of sexually assaulting his ex-girlfriend. Darrach was sentenced in 1994 to nine months in jailfor the assault. By a 9-0 the court found that all the rape shield provisions in the Criminal Code are constitutional. The ruling says, forcing accuser to give evidence would invade her privacy and would "discourage the reporting of crimes of sexual violence." In his appeal, Darrach had argued that he had been denied a fair trialbecause he was unable to raise the fact that he mistakenly thought the incident was consensual. Additionally, Darrach argued that the law unfairly required him to testifyat his own trial. During the trial, Darrach refused to testify at an evidentiary hearingand the evidence was ruled inadmissible. [http://www.rapereliefshelter.bc.ca/issues/darrach.html Supreme Court upholds rape-shield law] Erin Anderssen "The Globe and Mail", Ottawa October 13, 2000]
In the United States of America
In the late 1970s and early 1980s, almost all jurisdictions in the
United Statesadopted some form of rape shield statute. The laws in each state differ according to the scope of sexual behavior shielded and time limits of the shield. Many American states do not permit any evidence relating to the past sexual behavior of the complaining witness. This encompasses evidence of specific instances of the victim's prior or subsequent sexual conduct including opinion evidence or reputation evidence. [Rape Shield Statutes (by U.S. state), VAW May 2005 - accessed at National District Attorneys Association [http://www.ndaa.org/pdf/vaw_rape_shield_laws_may_05.pdf] April 4, 2007]
1999in the case of People v. Jovanovic, the New York Court of Appealsruled that a lower court had improperly ruled as inadmissible
Identification of alleged rape victims by media outlets
As a matter of courtesy, most newspapers and broadcast media in the United States do not disclose the name of an alleged rape victim (the complaining witness) during the trial, and if the alleged rapist is convicted, most will continue to not identify the victim. If the case is dropped or the alleged rapist is acquitted, most media will no longer shield the name of the complaining witness. This practice was probably related to laws in some states which made it a crime to publicly reveal the name of the complaining witness in a rape case. When such laws were challenged in court, they were routinely struck down as unconstitutional. [ [http://www.ojp.usdoj.gov/ovc/new/directions/chap13.htm Justice Department discussion on media reporting of sex crimes] , accessed
August 6, 2006.]
* in "
Cox Broadcasting Corporation v. Cohn" ussc|420|469|1975, the U.S. Supreme Court ruled unconstitutional a Georgia statute that imposed civil liability on media for publishing a rape victim's name. The news station had obtained the victim's name from public court recordsndash a factor the Supreme Court held to be important, noting that "the First and Fourteenth Amendments command nothing less than that the States may not impose sanctions on the publication of truthful information contained in official court records open to public inspection."
* in "
Florida Star v. B.J.F.", ussc|491|524|1989, the U.S. Supreme Courtfound a Florida statute which provided penalties for media outlets that publicized the name of an alleged rape victim unconstitutional.
* in "State of Florida v. Globe Communications Corp.", 648 So.2d 110 (Fla. 1994), the
Florida Supreme Courtheld that a Florida criminal statute that prohibited the media from identifying the names of sexual assault victims violated the First Amendment. In that case, Globe Communications Corp. twice published the name and identifying information of a sexual assault victim, violating the Florida statute. The paper had lawfully learned the victim's name through investigation. The Florida Supreme Court relied on the U.S. Supreme Court's decision in "Florida Star v. B.J.F.", finding that the Florida statute barring any media publication of a rape victim's name was unconstitutional because it was "overbroad"; that is, it punished the media even if, for example, the name of the victim was already known in the community. It also found that the statute was "underinclusive" in that it punished only media publication and not acts by a private person.
* [http://www.ncvc.org/ncvc/main.aspx?dbID=DB_FAQ:RapeShieldLaws927 The National Center for Victims of Crime]
* [http://laws.justice.gc.ca/en/C-46/ Criminal code (Department of Justice, Canada)]
* [http://www.usatoday.com/news/opinion/editorials/2003-07-27-estrich_x.htm Rape shield laws aren't foolproof]
* [http://www.csmonitor.com/2004/0325/p12s02-usju.html Is the rape-shield law working?]
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Look at other dictionaries:
rape shield law — n: a law that prohibits or limits use of evidence (as testimony) regarding prior sexual conduct of an alleged rape victim Merriam Webster’s Dictionary of Law. Merriam Webster. 1996 … Law dictionary
rape shield law — noun a shield law designed to protect a person appearing in court to claim that they were raped from being questioned as to their own sexual history … Australian English dictionary
rape shield law — See shield laws … Black's law dictionary
shield law — n: a law that prevents or protects against disclosure or revelation of information: as a: rape shield law b: a law that protects journalists from disclosure of confidential news sources Merriam Webster’s Dictionary of Law. Merriam Webster … Law dictionary
shield law — noun : a law that protects journalists from forced disclosure of confidential news sources * * * a law protecting journalists from forced disclosure of confidential sources of information. [1970 75] * * * shield law noun (N American) A law that… … Useful english dictionary
shield laws — Statutes in some states that make communications between news reporters and informants confidential and privileged, freeing journalists of the obligation to testify about them in court. This is similar to the doctor patient, lawyer client, or… … Law dictionary
Rape (disambiguation) — Rape derives from the Latin rapio , to seize . Rape may refer to:*Rape, forced sexual intercourse. **In some jurisdictions rape refers to other forms of sexual assault *Rape crisis centers, organisations that help victims of rape, sexual abuse,… … Wikipedia
Rape — This article is about a form of sexual assault. For other uses, see Rape (disambiguation). Sexual assault Classification and external resources … Wikipedia
rape — rape1 rapable, rapeable, adj. rapist, raper, n. /rayp/, n., v., raped, raping. n. 1. the unlawful compelling of a woman through physical force or duress to have sexual intercourse. 2. any act of sexual intercourse that is forced upon a person. 3 … Universalium
shield laws — Statutes affording a privilege to journalists not to disclose in legal proceedings confidential information or sources of information obtained by them in their professional capacities. Most states have such laws. Cf. N.Y. McKinney s Civil Rights… … Black's law dictionary