State v. Herndon

Court of Appeals of Wisconsin, 1988.

145 Wis.2d 91, 426 N.W.2d 347.

Dressler, pp. 420-422

The Sixth Amendment gives defendants the right to basically grill opposing witnesses. We’ve decided to limit this in rape cases with rape shield laws. You can’t ask a rape complainant about their past sexual history. Basically, the idea is to prevent defendants from harassing complainants which would deter them from reporting rape.

There are four main approaches to rape shield laws:

The Michigan approach – This is kind of a blanket approach where pretty much all testimony about sexual conduct or reputation is barred, with a few exceptions. This approach pretty much goes to the constitutional limit. Any evidence that may be accepted is closely scrutinized. The policy considerations behind the Michigan policy are:

1. To prevent harassment of the victim by the defendant

2. To eliminate evidence that is legally irrelevant

3. To eliminate evidence that distracts the jury from the legal issues

4. To encourage reporting by victims

The Texas approach – Texas and some other states will basically give judges as much discretion as they want. Judges are supposed to balance the value of the evidence against the possibility that it will prejudice the jury.

The federal approach – This approach has three key features:

1. A blanket prohibition, like the Michigan approach

2. Exceptions for “undeniably relevant” evidence

3. A catch-all provision to selectively admit relevant evidence on a case-by-case basis

The California approach – Evidence is separated into two categories:

1. Evidence offered to prove consent – it’s generally inadmissible except evidence of prior consensual sexual activity between the victim and defendant

2. Evidence offered to attack credibility – if it’s relevant, it’s in

Rape shield laws strike a balance between defendants’ Sixth Amendment rights and victims’ rights.

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