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Federal and state rape shield laws generally prohibit criminal defendants in a sexual assault case from introducing any victim's prior sexual history into evidence. Legislatures designed these laws to protect victims from shame, public scrutiny, and the forbidden propensity inference that a sexually active complainant is likely to engage in the kind of behavior at issue in the case. Rape shield laws often include exceptions for introducing evidence, specifically evidence of the complainant's prior consent to sex with the defendant, and where the Constitution so requires. In a time where relationships are more amorphous and unconventional, courts are ill-equipped to consider admission of evidence not contemplated by the rape shield drafters. Group sexual interactions seem to fit the exception for prior consensual relations with the defendant. Courts, however, treat such interactions inconsistently. In 2012, in Gagne v. Booker, the U.S. Court of Appeals for the Sixth Circuit found a state trial court's exclusion of group sex evidence reasonable. The Circuit, however, split into eight divisive opinions. In 1981, in People v. Keith, the California Court of Appeals for the Second Appellate District determined that exclusion of prior group sex evidence was reversible error. This Note considers, through a feminist legal theory lens, the implications of admitting prior instances of group sexual intercourse under the consent exception to rape shield laws. This Note argues that courts should admit this evidence when it is not unfairly prejudicial because admission may help destigmatize unconventional relationships and uphold the constitutional rights of defendants. This Note further argues that legislatures, followed by the courts, should lead the legal recognition of such relationships, to avoid instrumentalizing victims of sexual assault.


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31 Oct 2022
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  • Subject
    • Criminal Law

    • Evidence

    • Sex Crimes

    • Sexuality and Sexual Orientation

  • Journal title
    • Boston College Law Review

  • Volume
    • 63

  • Issue
    • 7

  • Pagination
    • 2309-2348

  • Date submitted

    31 October 2022