STEREOTYPING EVIDENCE: THE CIVIL EXCEPTION TO THE FEDERAL RAPE SHIELD LAW AND ITS EMBEDDED SEXUAL STEREOTYPES

• Published in: The American University journal of gender, social policy & the law Vol. 30; no. 1; pp. 1 - 55
• Main Author: Albin, Ramona
• Format: Journal Article
• Language: English
• Published: Washington American University 01.01.2022
• Subjects: Case law; Consent; Courts; Criminals; Evidence; Females; Law; Prejudice; Rape; Sex crimes; Sexual behavior; Sexual harassment; Sexual intercourse; Sexuality; State court decisions; Stereotypes; Trials; Victims of Crime; Women; United States > US; Wisconsin
• ISSN: 1557-3753; 2331-317X

The common thread running throughout is the embedded sexual stereotype that "unchaste" women actually consent to forced sexual intercourse, welcome sexual harassment,7 and that women's conduct that does not fall into "acceptable" bounds of behavior is not subject to legal protection.8 In civil cases, Rule 412 embeds this stereotype and normative judgment by giving courts broad discretion to admit sexual behavior and sexual predisposition evidence, where such evidence infuses sexual innuendo into the trial. Part II describes the legislative history of the civil exception and the impact of the Supreme Court's opinion in Meritor Savings Bank, FSB v. Vinson9 on the construction of the civil exception. FROM RAPE LAW TO "UNWELCOMENESS" TO RULE 412 A. Rape Law, the Utmost Resistance Requirement, and "No" Means "Yes" Normative judgments of female sexuality underlie rape law, sexual harassment law, and Rule 412.10 Until the 1970s, evidence of a victim's past sexual behavior was generally admissible in rape cases because, according to the courts, unchaste women were more likely to consent to sexual intercourse.11 In other words, rape law contained a "chastity requirement" for legal protection.12 Not only was evidence of prior sexual behavior admissible, but common law before the 1970s generally required that the prosecution prove beyond a reasonable doubt that the victim exhibited utmost resistance or reasonable resistance to prove she did not consent to sexual intercourse.13 For example, in 1978, in State of Wisconsin v. Muhammad, the Wisconsin Supreme Court reversed and remanded a defendant's rape conviction because the victim did not show sufficient resistance nor sufficient fear to excuse resistance.14 Wisconsin statutory law at that time required the government to prove that sexual intercourse was by force and against the victim's will, meaning the government had to prove "her utmost resistance is overcome or prevented by physical violence or that her will to resist is overcome by threats of imminent physical violence likely to cause great bodily harm. In the first instance, women could not recover damages in tort for sexual assault until the mid- nineteenth century.20 Later, civil suits for seduction or indecent assault were actionable, even though each action included consent defenses borrowed from rape law.21 It was not until the late 1970s that federal courts even recognized a cause of action for sexual harassment.22 And, only in 1986, in Meritor Savings Bank, FSB v. Vinson, the Supreme Court recognized sexual harassment claims under Title VII of the Civil Rights Act of 1964.23 The holding in Meritor, however, was a double-edged sword.