In furtherance of victims’ right to privacy, in each state, the rules applicable to evidence in military proceedings and the Federal Rules of Evidence each have laws that are colloquially known as “rape shield” laws. Generally speaking, these laws prohibit the introduction of any evidence related to a sexual assault victim’s prior consensual sexual history. There are exceptions, explained below.

Rape shield laws provide that, generally, victims cannot be questioned about their prior consensual sexual history when they testify, and any records introduced in evidence that contain such information (such as medical records or mental health records) should be redacted. Prior to the enactment of these laws, it was common for sexual assault victims to be questioned about their entire consensual sexual history, even when it was irrelevant to the instant sexual assault charge, in order to paint the victim as promiscuous and not believable.

Rape shield laws vary from state to state, but all such laws give judges discretion to allow some questions about aspects of a victim’s sexual history. Typically, the defendant must demonstrate that this evidence is relevant to the offense charged, and that it is necessary to question the victim regarding the information in order to give the defendant a fair trial. This means that, in order for evidence of a victim’s prior consensual sexual history to be introduced at trial, the defendant must make an argument to the judge for its admission. The prosecutor must be given an opportunity to argue against it. The presiding judge will make a decision based on the parties’ arguments and the applicable law and case law.

Ideally, this should be done prior to trial or prior to the victim’s testimony so that the victim is adequately prepared for the scope of testimony that will be allowed. In some states there are particular time requirements for making such a motion. For example, Oregon’s rape shield law requires the defendant to make a written motion, at least 15 days prior to trial, requesting permission to present evidence of the complainant’s consensual sexual history which must be then decided by a judge in an in camera (closed to the public) hearing.¹

As U.S. Supreme Justice Sandra Day O’Connor observed, requiring advance notice (and a hearing prior to trial) for this type of evidence “represents a valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasion of privacy.”²