Rape Shield in Utah – what it is, prohibits, and permits

Rape shield laws protect victims of sexual assault
Rule 412 of the Utah Rules of Evidence is Utah’s “rape’shield” law.

What is a Rape Shield Law?

A rape shield law is a rule of evidence that prohibits criminal defense attorneys from introducing evidence of prior sexual activity engaged in by an alleged victim of a sexual assault. The logic for such a rule is that juries, when deciding whether a sexual assault occurred, should focus on the act in question and not on the past acts engaged in by the alleged victim. Such evidence would be irrelevant and could prejudice a jury against the alleged victim.

Where is Utah’s Rape Shield Law Found?

Utah’s rape shield law if found in Rule 412 of the Utah Rules of Evidence. That rule specifically prohibits a defense attorney from introducing any “evidence offered to prove that a victim engaged in other sexual behavior” and “evidence offered to prove a victim’s sexual predisposition.”

Are There Exceptions?

The short answer is yes, but falling under the exceptions to Rule 412 is difficult.

Consent

One exception is when the alleged victim and the defendant had engaged in other sexual acts. Under Rule 412(b)(2) “evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent” is admissible. “[A]ny evidence that tends to make consent ‘more or less probable’ is relevant.” State v.Richardson, 308 P.3d 526, 531 (Utah 2013) (finding that the trial court erred in excluding evidence that the defendant and alleged victim had anal sex on prior occasions). The Utah Supreme Court in its Richardson decision put it this way:

Rule 412(b)(2)[] rests on the notion that a person is more likely to consent to sex with a past sexual partner. See Wood v. Alaska, 957 F.2d 1544, 1551 (9th Cir.1992) (“[T]he victim’s prior acts with the defendant can shed considerable light on her attitude toward aving sex with him [at the time of the incident].”). That premise is in no way undermined by contextualizing detail about the nature of the sexual relationship. If a person is more likely to consent to sex with a past sexual partner, she is also more likely to consent to the kind of sexual relations she has had with a partner in the past. Additional, contextualizing detail can hardly undermine the relevance of such evidence.

Right to Confront Witnesses

“Evidence whose exclusion would violate the defendant’s constitutional rights” also is admissible under Rule 412(b)(3). Two constitutional rights tend to pop up in these type of situations, both deriving from the Sixth Amendment to the United States Constitution: (1) the right to cross- examine an accuser; and, (2) the right to present a defense.

“A Sixth Amendment violation occurs when a defendant is ‘prohibited from engaging in otherwise appropriate cross-
examination designed to show a prototypical form of bias on the part of the witness, and thereby to expose the jury to the facts from which [it] … could appropriately draw inferences relating to the reliability of witnesses.’” Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986). Furthermore, “where rules of evidence or procedure foreclose any meaningful avenue for presenting a defendant’s fundamental defense to charges against him, the U.S. Supreme Court has found a Sixth Amendment violation. And it has deemed the Sixth Amendment to override rules of evidence or procedure.” State v. Thornton, 391 P.3d 1016, 1029 (2017).

Unfortunately, the right to confrontation has become extremely limited with Rule 412 and actually showing a constitutional violation has nearly become an impossibility under the rape shield law. Most defendants must rely on the consent exception to get past it.

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