Officials’ Attitudes toward Sexual History Evidence

Abstract

In the previous chapter, we examined officials’ assessments of the importance of specific kinds of evidence, including two types of sexual history evidence, for prosecuting and for obtaining convictions in rape cases. We found that the strength of a jurisdiction’s shield law influenced assessments by the officials of the likelihood that sexual history evidence would be admitted. In this chapter, we explore officials’ judgments of sexual history evidence in greater detail. We examine the responses of judges, prosecutors, and defense attorneys to six hypothetical cases in which evidence of the victim’s past sexual conduct is at issue.

In camera hearings on sexual history evidence are rare. Defense attorneys are convinced it’s not going to help their case. They’re aware that everyone over a certain age is going to have a sexual past. It’s just not that unusual and, with the mores of the time, it’s just not that important. —Houston Judge

It is only when a date rape misunderstanding occurs that I think the defendant couldn’t get a fair trial without information about prior sexual conduct. —Detroit Judge

There are some cases where evidence of prior sexual history is relevant and the law doesn’t make exceptions for these. The law’s the law, but fair is fair. —Chicago Judge