How does the Rape Shield Law work in TN criminal cases?

• published: 18 Jan 2016
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Hi I’m Jeff Lee, Certified Criminal Trial Specialist practicing in Memphis, Tennessee. I want to share with you how the Rape Shield Law works in Tennessee criminal cases. Let’s talk first about the cases that it applies to. When a defendant is charged with a serious sex crime such as rape, sexual battery, incest, etc., this law is going to apply. The Rape Shield is a rule of evidence that prohibits certain kinds of evidence from being heard by the jury. That evidence is sexual behavior of the victim. So if you are a defendant accused of rape, you have additional restrictions on the evidence that you can introduce. You’ll see here that the proposed evidence can come in two categories: reputation or opinion testimony, and specific instances of conduct. Reputation is almost never coming in, but there in several cases the Specific Instances can be admitted. Specific Instances of Conduct are allowed whenever the Constitution allows it – not much happening there – and the second exception is the proposed evidence if introduced to show the credibility of the alleged victim – why should we believe this person? Now, the prosecutor has to ask certain questions, and the judge can limit how far you can go with it, but this is the first exception that allows specific instances. The third exception is when the defendant wants to talk about the sexual behavior of the victim specifically with the defendant. This is really the one that most often comes into play. Say, for example, that a defendant wants to stay, “Hey, we’ve been sexually active for months, so I’m not guilty of rape.” Now, that doesn’t really prove anything all by itself, but it certainly helps. At least that way, the jury knows that the defendant and victim were in a six-month committed relationship, and they aren’t wondering what he’s even doing in her bed, when he shares an apartment with her. The fourth exception is when the defendant wants to talk about the sexual behavior of the victim with persons other than the accused. This is usually the one that defendants ask me about most. They’ll say, “Hey, this girl had sex with everybody,” but that’s the kind of thing that can be used to embarrass a victim and it really doesn’t have much bearing on the case. But this evidence can be used to rebut scientific evidence (bloodwork, pubic hair, bite mark evidence to get after the State’s expert witness, etc.), to prove or explain the source of semen, injury, disease, etc. (sort of like, “She got this STD from her ex,”), and lastly, to prove consent if the evidence is of a pattern of sexual behavior so distinctive and so closely resembling the accused’s version of the alleged encounter with the victim that it tends to prove that the victim consented to the act charged or behaved in such a manner as to lead the defendant reasonably to believe that the victim consented.” What in the world does that mean? As an example, maybe a prostitute has a unique scheme where she lures guys up to a particular hotel room where a pimp is planning to strip and rob them, but when the plan went awry, and the police came, she said instead that she’d been raped. This was an actual case, so that didn’t come from wishful thinking, strategic planning, or an overactive imagination. Now, I’ve got two slides showing the procedure for introducing evidence of the victim’s sexual behavior. I don’t want to get really deep into this, because you don’t need to know this – your attorney does, but the point here is that you can’t tell you attorney on the evening before trial that you want to introduce evidence covered by the Rape Shield Law. You can see here that this proposed evidence has to be filed ten days before the trial, and there has to be a special hearing about it. That also means that they’re going to see you coming – you can’t surprise the alleged victim with some secret folder and say, “Look what I’ve got! The names of your old sex partners!” That’s not going to work. So even if you get the evidence in, they’re going to have a way to try to explain it away and it’s going to lose its impact. Now, let’s see how much you’ve learned. First, you need to ask whether the Rape Shield Law applies to this offense. Next, ask whether the proposed evidence is reputation or opinion, or specific instances of conduct. Last, what is the purpose for which the evidence is being offered? That means, why is the defendant trying to get this evidence in? As you can see, this is tough stuff, and there are a lot of lawyers out there who handle drug, theft, vandalism cases or whatever, but they don’t ever see this law because it pertains only to sex assault cases. If you’re not careful, you could get an attorney who doesn’t understand what is admissible, or that there is a procedure that must be followed. For that reason, if you have any questions or want to hire me, please contact me at www.MySexCrimeAttorney.com