Character, Credibility, and Rape Shield Rules

ARTICLES
Character, Credibility, and Rape Shield Rules
R. MICHAEL CASSIDY*
ABSTRACT
Rape shield laws have played an important role in protecting complainants
and jurors from some of the most pernicious and ill-founded assumptions about
sexual autonomy and consent. Yet the development and application of these
rules have left many thorny questions. The policy debate has now shifted from
whether and how the accuser’s prior sexual conduct should be admitted to
prove consent or lack of credibility due to what was once termed “unchastity”
(now universally condemned and rightly prohibited) to whether and how the
accuser’s prior sexual conduct should be admitted to support a more specif‌ic
and logically relevant argument for dishonesty. That is, when prior sexual con-
duct itself involves dishonest behavior, the defendant is not offering the prior
incident to support a general character trait for mendacity because the com-
plainant has been sexually active; rather, the defendant is arguing that the com-
plainant has a character trait for untruthfulness because the accuser has lied.
One narrow but critical question we need to confront as evidence and rape law
progress during the “Me Too” movement is whether the jury, in assessing a
complainant’s credibility in a rape prosecution, should be allowed to hear
about prior false allegations of sexual assault made by the accuser.
This article focuses on rape shield rules throughout the United States, high-
lighting how these evidence rules have been stretched beyond their original
purpose to prevent a defendant from raising incidents in the accuser’s sexual
history that may be highly pertinent to a jury’s determination of who they
should believe. Specif‌ically, it addresses limitations courts have placed on
inquiring into prior false allegations (PFA) of sexual assault by the accuser to
prove lack of credibility in the present case. The author argues that some courts
in the United States have mistakenly weighed the accuser’s privacy interests
and the court’s interests in protecting the jury from being confused or misled
ahead of the defendant’s fundamental right to a fair trial.
The thesis of this article is that interpreting rape shield rules to require the
exclusion of prior false allegations of rape jeopardizes the ascertainment of the
truth. Yet the state of the law at the intersection of prior false allegation evi-
dence, rape shield rules and the Sixth Amendment protections for confrontation
* Professor and Dean’s Distinguished Scholar, Boston College Law School. I am grateful for the
research and editing assistance of Sean Fishkind (BC Law 2020), Joseph Archambeau (BC Law 2021),
and Taylor Vitelli (BC Law 2022). My colleague Mary Ann Neary in the Boston College Law Library
was very generous to us in providing guidance and direction in source collection. © 2021, R. Michael
Cassidy.
145
and compulsory process leaves the admissibility of this particular type of evi-
dence highly contested and uncertain. The confusing and in places incoherent
state of the case law on PFA—both def‌initional and procedural—underscores
the need for a clarity that only a legislative solution can provide. This article
proposes a “next wave” of reform of rape shield rules that specif‌ically
addresses this form of proof, and that appropriately balances the interests of
victims, defendants, and the judicial process.
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 146
I. THE PROBLEM . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150
II. OVERVIEW OF STATE AND FEDERAL RAPE SHIELD RULES IN THE
UNITED STATES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151
A. Federal Rules of Evidence 608(b) and 412 . . . . . . . . . . . . . . . 152
B. State Approaches to Character for Dishonesty . . . . . . . . . . . . 154
C. State Rape Shield Rules and Prior False Accusation Evidence 156
III. CONSTITUTIONAL PROTECTIONS FOR THE ACCUSED . . . . . . . . . . . . 158
IV. RECOMMENDATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 168
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175
APPENDIX A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176
INTRODUCTION
Harvey Weinstein’s conviction and sentencing on charges of third-degree rape
and aggravated sexual assault were heralded as “landmark” and “watershed”
moments in the “Me Too” movement.
1
Women f‌inally became free to come for-
ward to speak their truths about sexual violence and oppression, prosecutors
became more willing to bring charges in diff‌icult cases, and juries became more
willing to believe victims and hold the powerful accountable.
1. Full Coverage: Harvey Weinstein is Found Guilty of Rape, N.Y. TIMES (Feb. 24, 2020),
https://www.nytimes.com/2020/02/24/nyregion/harvey-weinstein-verdict.html [https://perma.cc/
GQ4H-WAHT]; Jan Ransom, Harvey Weinstein’s Stunning Downfall: 23 Years in Prison, N.Y.
TIMES (Mar. 11, 2020), 11, 2020), 11, 2020), https://www.nytimes.com/2020/03/11/nyregion/
harvey-weinstein-sentencing.html [https://perma.cc/A3XX-WMDM].
146 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY [Vol. 19:145
This debate about what it means to “believe women,” which has now become a
rallying cry of the “Me Too” movement,
2
extends beyond the courtroom. The
public’s attention has recently been consumed by allegations of sexual assault
against several high-prof‌ile public f‌igures. Christine Blasey Ford’s allegations of
sexual assault against then-Supreme Court nominee Brett Kavanaugh in 2018,
3
as
well as former Senate intern Tara Reade’s allegations of sexual assault against
then-Presidential candidate Joe Biden in 2020,
4
are reminders that the question of
when and why to believe sexual assault allegations can be both excruciating and
highly divisive. It is tautological to say “we believe survivors,”
5
because the com-
plainant is only a survivor if her claim of victimization is truthful. The war cry
“believe women” is seen by some as a necessary corrective to a historic injustice
and by others as dangerous ideological orthodoxy if “believe women” becomes
“believe all women.”
6
Indeed, just months after Tara Reade’s allegations against
President Biden were f‌irst broadcast on March 26, 2020,
7
it was revealed that
Reade fabricated both a college degree and a subsequent visiting faculty position
at Antioch University.
8
Would the public be warranted in taking those fabrica-
tions into account in evaluating Reade’s credibility? Would a jury?
At least in the courtroom, we do not hastily or ref‌lexively conclude that all sex-
ual assault allegations are true.
9
On the contrary, the presumption of innocence
2. Morgan Gstalter, Dating App Bumble Publishes Full-Page Ad in NY Times: ‘Believe Women’,
THE HILL (Sept. 28, 2018), https://thehill.com/blogs/blog-brief‌ing-room/news/408946-female-driven-
dating-app-bumble-publishes-full-page-ad-in-the [https://perma.cc/CDR2-DLDW]; Marie Solis, When
Believing Women Isn’t Enough to Help Them, VICE (Oct. 9, 2018), 9, 2018), 9, 2018), https://www.vice.
com/en_us/article/gyemm3/when-believing-women-isnt-enough-to-help-them [https://perma.cc/9KW5-
5GEZ].
3. Sheryl Gay Stolberg, Kavanaugh’s Nomination in Turmoil as Accuser Says He Assaulted Her
Decades Ago, N.Y. TIMES,(Sept. 16, 2018), https://www.nytimes.com/2018/09/16/us/politics/brett-
kavanaugh-christine-blasey-ford-sexual-assault.html [https://perma.cc/XBH8-J7W7].
4. Jim Rutenberg, Stephanie Saul & Lisa Lerer, Tara Reade’s Tumultuous Journey to the 2020
Campaign, N.Y. TIMES (May 31, 2020), https://www.nytimes.com/2020/05/31/us/politics/tara-reade-
joe-biden.html [https://perma.cc/3ZRX-ZW94].
5. Tarana Burke (@taranaburke), TWITTER (Sept. 27, 2018, 10:11AM), https://twitter.com/
TaranaBurke/status/1045314888560717824?s=20 [https://perma.cc/SQV9-6ZDC].
6. Bari Weiss, Opinion, The Limits of ‘Believe All Women’, N.Y. TIMES (Nov. 28, 2017), https://
www.nytimes.com/2017/11/28/opinion/metoo-sexual-harassment-believe-women.html [https://perma.
cc/LF6S-LRQH].
7. See the Katie Halper Show: Biden Accuser Tara Reade: “I wanted to be a senator; I didn’t want to
sleep with one”, APPLE PODCASTS (Mar. 26, 2020), https://podcasts.apple.com/us/podcast/biden-
accuser-tara-reade-i-wanted-to-be-senator-i-didnt/id1020563127?i=1000469598310 [https://perma.cc/
7REM-E7QE].
8. Amber Phillips, New Reporting Puts Focus on Tara Reade’s Inconsistencies, WASH. POST (May 23,
2020), https://www.washingtonpost.com/politics/2020/05/23/reporting-tara-reade-credibility/ [https://perma.cc/
H8MC-H6EW].
9. In this article I use the terms “complaining witness,” “complainant,” and “accuser” to refer to the
alleged rape victim. Using these terms, rather than the increasingly common “victim,” gives respect to
the presumption of innocence. Moreover, it seems particularly appropriate in an article focusing on the
jury’s credibility determinations in diff‌icult sexual assault cases. Where pronouns are necessary, I will
use the pronouns “she” or “her” to refer to the complainant and “he” or “him” to refer to the defendant.
These pronouns are not intended to imply that men cannot be raped or that women cannot perpetrate
2021] CHARACTER, CREDIBILITY, AND RAPE SHIELD RULES 147

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