Rape is a type of sexual assault when a person is forced to have sex against their will. “Rape shield” is a concept in the legislation of countries such as Canada, New Zealand, Australia, and others. The concept refers to the limitations imposed by the law to use the victim’s previous sexual history as evidence. “Rape shield” allows for more objectivity in the cases when the defense might try to point out the fact that the victim was sexually active and, therefore, more likely to consent to the sexual act in question. In essence, a “rape shield” prevents unfair inference and protects rape victims from judgment. This paper argues that for all its controversy, the rape shield has had a positive impact on women’s rights in Canada.
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The Impact of Rape Shield Laws
First and foremost, rape shield laws help to address the detrimental phenomenon that is victim-blaming. Victim blaming occurs when the observers blame the victim of rape for what has happened to her based on her personal qualities, past experiences, or behaviors. An example to illustrate the concept would be when the observers inquire why the victim was dressed in a particular, often revealing or suggestive way. They might question her choices: why she would be out alone at night, why would she consume alcohol at a bar unattended, or why she would associate with untrustworthy people. What is concerning is that victim-blaming is quite a powerful mindset. One may imagine that such conclusions can only be made by people who do not have extensive knowledge regarding the criminology and psychology of rape. However, as many experts show, the manipulation of the victim’s image often takes place in courts and directly impacts the final ruling (Van der Grubb and Bragg, 2014). Victim blaming shifts responsibility from the perpetrator to the victim and impedes the execution of justice.
The execution of justice in court is not the only thing that becomes inhibited. When victims are at risk of being blamed, they might be hesitant to speak up or report. Van der Grubb and Bragg (2014) show that rape permeates even the most developed societies. For instance, according to recent statistics, one in five women in North America has been assaulted at least once in her life. One would expect a lot of rape cases; however, rape often goes underreported with some sources hinting at numbers as low as 20-25% of the total number of cases (Van der Grubb and Bragg, 2014). Investigating rape is a long and challenging process that often challenges the victim emotionally, even if everyone involved treats her with fairness and respect. It is readily imaginable how anyone who experienced assault would be not sure about taking action given that the odds of being blamed in return are high.
The process of rape investigation starts with the police. Ellison and Munro (2014) provide a systematic review of the current literature on the so-called rape acceptance in police officers. Rape acceptance is a social paradigm that denotes rape as acceptable. Those societies that show high rape acceptance do not address the issue of sexual violence properly, preferring to blame the victim and conceal the case altogether (Ellison & Munro, 2014). Ellison and Munro (2014) show that a small part of police officers indeed hold a negative attitude toward rape victims. Their reaction is also likely to change depending on some accompanying factors such as alcoholic intoxication. In one experimental study, a mock victim who was drunk was seen as someone who was taking a risk knowingly. Thus, given that such attitudes persist, there is a need to somehow address them legally.
Rape shield laws in Canada aimed at moderating the human factor in justice execution. Indeed, the criminal justice system is not devoid of the psychological aspect. For instance, the prosecution or the defense might have their own, personal opinion on the participants of the process and be biased when making decisions. Van der Grubb and Bragg (2014) show that in the case of rape, victims’ characteristics and observers’ characteristics impact each other simultaneously.
What deserves consideration is that there are certain patterns in what kind of observers are likely to resort to victim-blaming. A meta-analytical review of articles on the subject matter has shown that men are more likely to minimize the adverse impact of rape and exaggerate the victim’s responsibility (Van der Grubb and Bragg, 2014). Besides, the better the victim and the perpetrator have known each other before the incident, the more likely the woman was to be blamed for his actions (Van der Grubb and Bragg, 2014). It is not to say that any male juror, prosecutor, or advocate is going to use victim-blaming. However, to prevent this from happening, rape shield laws are still needed.
An example shall be provided to illustrate the mitigating effect of rape shield laws on victim-blaming. This year, the Supreme Court of Canada bars a man accused of having sex with an underage girl from inquiring about a cross-examination (The Canadian Press, 2019). The perpetrator intended to mount a defense by using the evidence regarding the victim’s past sexual experiences. The central piece of evidence was that the girl became pregnant around the same time as the rape took place. The cross-examination would involve a background check on her sexual activity. The defense assumed that it might not have been the perpetrator who impregnated her but someone else, therefore, hinting at how active she was sexual. The Supreme Court found the inquiry ungrounded, and in July 2019, the man was convicted of rape.
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Emotional Distress Relief
It is no wonder that rape case investigation puts stress on the victim’s mental health and sanity. Rape victims are likely to be in severe distress or even traumatized, to begin with. For instance, Langton and Turman (2014) provide a piece of statistics that 70% of victims of violent crimes showed signs of extreme emotional distress. Mbalo, Zhang, and Sam (2017) report that there is a strong association between rape, PTSD (post-traumatic stress disorder), and depression. Further, Mbalo et al. (2017) explain that some groups of women are more at risk of developing stress and long-term mental conditions as a result of rape. Typically, those who have been abused as children experience retraumatization through rape, which makes their situation even direr. Unemployed women and women without a stable support network (family, life partners, friends) were also more susceptible to PTSD and depression. The latter was explained by those women’s inability to share and relieve pain through conversations or merely being in someone’s presence.
What should be noted is that while stress is an undesired but normal reaction, it can prevent victims from executing self-agency and being assertive in court. The pain of being a victim of a violent crime cannot be that easily recuperated. What the justice system should strive to do instead is protect victims from becoming even more traumatized. In this case, rape shield laws help women regain their integrity and self-respect because other parties cannot interfere with their previous personal experiences and cause more distress.
For all their advantages, one way in which rape shield laws do not quite protect victims in Canada is ensuring digital security. Birdsell (2014) claim that the advent of the Internet age requires a re-evaluation of what place the Internet space take in the legal system. Birdsell (2014) explains that in Canada, the laws addressing the concealment of the victim’s identity date back to the 1980s. Nowadays, they should be applied together with rape shield laws to make sure that rape trials are fair. However, there is a certain schism between rape shield laws and victims’ rights statutes in terms of how they treat the information on the Internet. According to Birdsell (2014), none of those two categories of laws cover the entire issue. In essence, rape shield laws serve for evidentiary protection, which only serves any good within the court’s walls. Outside the court, victims are often defenseless and do not have total control over the amount, quality, and access to information.
One feature that Birdsell describes as defining when he discusses the issues of rape and digital security is the permanency of the information on the Internet. Unlike physical photos and videos, whatever is posted online is likely to stay there for an indefinite period. For example, even if the owner of a social media profile decides to delete a photograph or a video recording for good, she cannot be quite sure that no one saved them for personal use or to use them against her. Now that this paper addressed the negative attitudes that observers might have toward rape victims, it is readily imaginable that certain social media content may also become the reason for victim-blaming.
Powell (2016) discusses the way women’s social media accounts are perceived in the light of increased rape awareness. The researcher shows that more often than not, digital security guidelines prescribe women to avoid sharing or posting intimate images for the sake of their security. An example to illustrate the issue in regards to the subject matter of the paper is posting revealing pictures to only discover later that they are used by the court that the victim used to be sexually active, and therefore, the case investigation should take a different direction. Powell (2016) argues that advising women not to post anything is counterproductive. Surely, everyone should take reasonable precautions when being active on social media. However, putting the burden of responsibility only on female SM users is problematic for two reasons:
- some images and videos can be interpreted by the defense in a way that would present them as suggestive even if it is not how they are meant to be seen;
- women are often hacked with their intimate images being leaked, i.e. the images that make it to the public have never been meant to end up there.
Taking all points into consideration, it seems that there is a legal way to govern cross-referencing using the Internet. So far, it seems that rape shield laws do provide a solid framework to do it; however, they need to be applied together with victims’ rights statutes to make a positive impact.
Controversies to Address
It has been shown that rape shield laws have a positive impact on women’s rights in Canada. However, some controversies are unavoidable and have yet to be properly addressed. In the day and age when rape awareness is at its peak, many people find themselves wary of false accusations. To them, laws such as rape shield provide scammers with a breeding ground for creating lies and ruining innocent people’s lives. It is hard to deny that false rape accusation cases do occur and the alleged victims sometimes do prove to be abusers and violators. Therefore, some legal researchers and practitioners hint at the need to make the law more symmetrical to make sure that both the victim and the accused can be equal and not let a single party prevail over the other. Surely, in the context of this paper, the issue needs to be analyzed from the standpoint of women’s rights as the defendant’s rights are not exactly its subject matter.
Imwinkelried (2015) states that symmetry laws have the potential of ruling out false accusations because in this case, the plaintiff’s history of accusations would be checked. The general premise is that if a person is known for making false claims, she is likely to continue doing them seeking attention or financial rewards from those who she is trying to accuse. Imwinkelried, E. J. (2015) provides a framework for deciding whether an accusation is false based on the plaintiff’s background check. The questions that need to be answered before proceeding include but are not limited to the following:
- Are the accusations both stranger rapes or both acquaintance rapes?
- What types of sexual activities are involved in the charged crime and the case described in the false report? Was the sexual conduct in both situations conventional or both instances displayed aberrant conduct?
- What modus operandi did the victim claim that the offender followed in the charged and uncharged crimes? For instance, a curious and implausible situation is when the victim claims the identical modus operandi in two unrelated stranger rapes.
Imwinkelried, E. J. (2015) states that the more similarities there are between the two cases – one false and the other uncharged, the less credibility should be assigned. This approach is as efficient as it is problematic. Truly, if rape shield laws are applied in this case and the defense is barred from cross-examination, it may mean that the court will proceed with a false accusation in some cases. On the other hand, there might be a rare case when a woman makes a false accusation and then a real one. Then the latter will not be taken seriously due to the history of deception.
Another problem highlighted by Loewen (2015) is the purity paradigm that still prevails in court. Loewen states that rape shield laws are far from being truly progressive and empowering women. According to the researcher, regardless of whether sexual history is considered or not, the common public sentiment is that sexual history does matter. Loewen (2015) explains that when rape shield laws are enacted, the court does not quite acknowledge women’s rights to their bodies and making choices regarding their sex life. Instead, the prosecution does its best to conceal the facts and present the victim in the best light. Seeking sympathy from the judge and other observers, the prosecution claims that the victim is pure and innocent. To advance female empowerment, it is essential to debunk the purity myth and denote sex as a normal part of a woman’s life. In this case, sex will remain a fact of the past that does not serve either as evidence or something to be hidden at all costs.
By now, almost all countries in the world have some kind of legislation addressing rape with developed countries taking the lead with comprehensive and balanced laws. It is argued that rape is a crime that is challenging to investigate: more often than not, the contents of a case are distilled to whether the victim provided consent or not. As one may imagine, consent can take both verbal and non-verbal forms, which makes it straining to prove anything. In Canada, rape shield laws bar the defense from examining the victim’s sexual past to use her sexual activities as evidence. It contributes to the fight against victim-blaming and has the potential of relieving distress in victims. However, it is not clear how rape shield laws deal with social media serving as a source of alleged evidence. Some other shortcomings include the compatibility of rape shield laws with symmetry laws. Lastly, some experts think that the rape shield perpetuates the purity myth.
Birdsell, B. (2014). Reevaluating gag orders and rape shield laws in the Internet age: How can we better protect victims. Seton Hall Legislative Journal, 38, 71.
The Canadian Press. (2019). Supreme Court convicts man barred from cross-examining victim by rape shield law. Web.
Ellison, L., & Munro, V. E. (2014). A ‘special’delivery? Exploring the impact of screens, live-links and video-recorded evidence on mock juror deliberation in rape trials. Social & Legal Studies, 23(1), 3-29.
Imwinkelried, E. J. (2015). Should rape shield laws bar proof that the alleged victim has made similar, false rape accusations in the past: Fair symmetry with the rape sword laws. The University of Pacific Law Revue, 47, 709.
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Langton, L., & Truman, J. L. (2014). Socio-emotional impact of violent crime. US Department of Justice, Office of Justice Programs, Bureau of Justice Statistics.
Loewen, K. (2015). Rejecting the purity myth: Reforming rape shield laws in the age of social media. UCLA Women’s LJ, 22, 151.
Mgoqi-Mbalo, N., Zhang, M., & Ntuli, S. (2017). Risk factors for PTSD and depression in female survivors of rape. Psychological Trauma: Theory, Research, Practice, and Policy, 9(3), 301.
Powell, A. (2016). ‘Be careful posting images online’ is just another form of modern-day victim-blaming. Web.
Van der Bruggen, M., & Grubb, A. (2014). A review of the literature relating to rape victim blaming: An analysis of the impact of observer and victim characteristics on attribution of blame in rape cases. Aggression and Violent Behavior, 19(5), 523-531.