Legislative Memo: The Rape Shield Reform Bill

The Rape Shield Reform Bill would amend section 60.42 of the criminal procedure law to remove from admissibility evidence that proves or tends to prove that a complainant had been convicted of a prostitution offense within three years prior to the sex offense which is the subject of the prosecution. The NYCLU strongly supports this legislation.

New York’s current “rape shield law” generally prevents a defendant in a rape trial from raising evidence about the victim’s prior sexual conduct. The law allows for certain exceptions including evidence (1) of the victim’s prior sexual conduct with the defendant; (2) as mentioned above, that the victim has been convicted of a prostitution offense within three years prior; (3) that rebuts of the victim’ failure to engage in certain sexual conduct during a given period of time; (4) rebuts evidence that the accused is the cause of pregnancy or disease of the victim, or the source of semen found in the victim; (5) is determined by the court to be relevant and admissible in the interests of justice.

The exception that allows the introduction of evidence of prior convictions for prostitution works as an absolute barrier to women who have engaged in sex work from fairly pursuing charges against sexual assailants. Categorically denying sex workers the protection of the “rape shield law”(1) is an unconstitutional infringement on the right to sexual privacy, (2) promotes the idea that convictions for prostitution are somehow relevant to the credibility of the complainant, and (3) serves to further institutionalizes the popular misconception that sex workers cannot be raped, ignoring the fact that they are actually at greater risk of sexual assault than the general population.

The Rape Shield Reform Bill restores sex workers’ constitutional right to privacy and allows victims of sexual assault to come forward to law enforcement without fear of discrimination and humiliation by the criminal justice system.

Rape shield laws limit the introduction of evidence about a complainant’s sexual history. They are designed to prevent irrelevant evidence from prejudicing the jury, and to help ensure that complainants are treated fairly and respectfully. In some rape cases the defendant’s right to a fair trial conflicts with the complainant’s right to have their claim to protection of the law vindicated without undue invasion of their sexual privacy.

When this conflict is irresolvable the right to a fair trial should not be qualified, no matter how compelling the countervailing concerns. However, careful application of the proper standards of relevance can do much to protect rape complainants from unnecessary imposition upon their right to privacy, without detracting from the fairness of the trial.

New York’s current rape shield law balances these competing interests by providing an exception that allows evidence of a complainant’s sexual history if the judge determines, in a closed hearing, that it is relevant and admissible in the interest of justice.

Complaints about sexual assault are extremely difficult for victims to make for emotional and social reasons. When any person is subject to sexual acts to which they have not consented, it can constitute a sexual assault, even if that person has engaged in prostitution. The fact that sex workers typically negotiate what they will and will not do, with clearly defined boundaries, only emphasizes this.

Furthermore, because of the nature of the sex industry and the social stigma attached to it sex workers at greater risk of being sexually assaulted than most people. Combined with distrust of law enforcement officials who are often unresponsive and unsympathetic to their complaints, they are even less likely to report crimes against them. The “prostitution exception” only exacerbates this problem.

By allowing the introduction of evidence of a rape complainant’s prior conviction for prostitution without any showing of relevance undermines complainants’ constitutional rights to privacy and increases the likelihood that crimes will go unreported. By removing the “prostitution exception” to inadmissible evidence, the Rape Shield Reform Bill protects the constitutional rights of all sexual assault victims and increases the ability of the justice system to prosecute crimes of rape.

The NYCLU, therefore, strongly urges the passage of S.2668/A6293.