A rape shield law is a law that limits a defendant's ability to cross-examine rape complainants about their past sexual behaviour. The term also refers to a law that prohibits the publication of the identity of an alleged rape victim.
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In 1992 legislation amended the Criminal Code of Canada to 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-49 amended 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 accuser had consented. The 1995 Supreme Court judgment in the case of British Columbia Bishop 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.[1]
In the 2000 decision of R. v. Darrach, the Supreme Court of Canada upheld the law in a case involving former Ottawa resident Andrew Scott Darrach, who was convicted of sexually assaulting his ex-girlfriend. Darrach was sentenced in 1994 to nine months in jail for 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 trial because 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 testify at his own trial. During the trial, Darrach refused to testify at an evidentiary hearing and the evidence was ruled inadmissible.[2]
In the late 1970s and early 1980s, almost all jurisdictions in the United States adopted 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 states do not permit any evidence relating to the past sexual behavior of the victim. This encompasses evidence of specific instances of the victim's prior or subsequent sexual conduct including opinion evidence or reputation evidence.[3]
In 1999 in the case of People v. Jovanovic, the New York Court of Appeals ruled that a lower court had improperly ruled as inadmissible e-mail in which the plaintiff/witness in a rape case expressed her consent to, and later approval of, the encounter. The lower court ruled these e-mails inadmissible on the basis of rape shield laws, however the Court of Appeals ruled that the previous court had misapplied those laws.
As a matter of courtesy, most newspapers and broadcast media in the United States do not disclose the name of an alleged rape victim 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 victim. This practice was probably related to laws in some states which made it a crime to publicly reveal the name of the victim in a rape case. When such laws were challenged in court, they were routinely struck down as unconstitutional.[4]