criminal law, criminal procedure, evidence, rape shield, consent defense
There is considerable debate as to whether to admit evidence of past sexual assaults in cases where the accused presents a defense of consent to a current sexual assault charge. The consent defense presents a unique situation where, due to the probative value of evidence that suggests propensity to rape, a strong justification can be made to admit this information as evidence. However, critics of this opinion have argued that admitting propensity evidence about the accused in a rape case is inconsistent with the rape shield rule which excludes propensity evidence about the victim. This argument is flawed in the sense that it does not properly take into account the full purpose of rape shield laws, nor does it acknowledge that evidence of a victim's sexual history is less probative than evidence regarding the history of the accused.
Roger C. Park,
The Crime Bill of 1994 and the Law of Character Evidence: Congress Was Right About Consent Defense Cases,
22 Fordham Urb. L.J. 271
Available at: https://ir.lawnet.fordham.edu/ulj/vol22/iss2/1