§ 33.07 PROVING RAPE AT TRIAL

• Jurisdiction: United States

§ 33.07. Proving Rape at Trial

[A] Corroboration Rule and Cautionary Jury Instructions¹⁵²

At common law, the testimony of the complainant — the alleged rape victim — was sufficient to uphold a conviction for rape; her testimony did not need to be corroborated.¹⁵³ However, a minority of states, by statute or case law, instituted a corroboration requirement. This rule provided that a defendant could not be convicted of rape (or, often, of any other sexual offense) upon the uncorroborated testimony of the alleged victim. The prosecution had to produce corroborative evidence, such as the complainant's bruises, broken bones, or torn clothing, or an eyewitness to the sexual assault.

The corroboration requirement was said to be the result of "legitimate concerns, outdated beliefs, and deep-seated prejudices."¹⁵⁴ Defenders of the rule believed that there is a higher risk of conviction of an innocent person in the prosecution of a sex offense than in the prosecution of other crimes. Lord Hale asserted that rape "is an accusation easily to be made and hard to be proved, and harder to be defended by the party accused, though never so innocent."¹⁵⁵ Indeed, these words or a paraphrase of them formed the basis of a cautionary jury instruction at one time in over half of the states.¹⁵⁶

Why would some lawmakers have believed that conviction of an innocent person is more likely in a rape case than, for example, a robbery? One reason given was a particularly bizarre one: The testimony of women in rape prosecutions was particularly suspect because, it was said, some women fantasize being raped and, therefore, genuinely come to believe that they were raped, when in fact the sexual contact was consensual.¹⁵⁷

Other advocates of the corroboration rule asserted that women have a strong motive to "cry rape" falsely. Traditionally, females were expected to avoid sexual relations until marriage; those who violated this deeply held moral code were subject to embarrassment, stigmatization, and even ostracism. Therefore, an unmarried female who had sexual intercourse or, more significantly, became pregnant, had a strong incentive to allege that she was raped, rather than to admit that she had consented to sexual intimacy.

There was also a legitimate concern for the accused person, founded on the realities of societal racism.¹⁵⁸ Historically, society disapproved of interracial sexual relations. A racist stereotype was that black men were prone to rape white women. A white woman who was known or suspected to have had sexual relations with an African-American male, therefore, was under substantial social pressure to falsely claim that she was raped. The corroboration requirement reduced the risk of racist-motivated convictions.

Opponents of the corroboration rule point out that Lord Hale's "comment does not reflect contemporary thought or experience."¹⁵⁹ The premise that women commonly fantasize rape is unfounded, and the other concerns are overstated or are outdated. For example, today's society is tolerant of premarital sexual activity, so that women have less reason to falsely claim rape. Finally, in light of the stigma attached to the crime of rape, and embarrassment that rape victims often suffer in the legal system, there is little reason to believe that false claims of rape occur often enough to justify a special corroboration requirement.

Opponents of the corroboration rule have won the day. Only two states retain the rule in rape prosecutions, and even then only in exceedingly limited circumstances.¹⁶⁰ And only eight states require a cautionary jury instruction, and then only if there was no corroboration of the alleged sexual assault.¹⁶¹

[B] Rape-Shield Statutes¹⁶²

In a criminal trial, two basic principles determine the admissibility of proffered evidence. First, no evidence is admissible unless it is relevant. Second, subject to limited exceptions, relevant evidence is admissible. Evidence is "relevant" if it has the tendency to prove or disprove any disputed fact at issue, including the credibility of a witness. However, a judge has discretion to exclude relevant evidence if its probative value — its...