Rape shield laws are supposed to protect victims from defense attorneys who would otherwise try to pry into their pasts. But when a 38-year-old man was accused of having oral sex with a 15-year-old girl, those laws broke down — an Arizona court ruled that his defense could use the information that she'd performed oral sex on two other men.
According to Feminist Law Professors, the judge in State ex rel. Montgomery v. Duncan ruled that evidence of the alleged victim's sexual history was admissible because it supported the defendant's assertion that he thought she was 18. Luckily, an appeals court didn't agree — it handed the decision back to the lower court, with this instruction:
It is not apparent to us how cross-examining the Victim on this evidence will aid in the truth-seeking process as to what Defendant's belief was as to the Victim's age. Thus, the only affirmative inquiry that needs to be made is whether Defendant, in his testimony, should be permitted to testify on direct about how the Victim's alleged statements that the Victim had previously engaged in oral sex led Defendant to conclude that the Victim was at least eighteen.
FLP's Colin Miller, however, argues that the victim's history shouldn't be admissible at all, even in the defendant's testimony. He points out that in a recent CDC study, "30% of females aged 15-17 reported giving oral sex to a male." So the fact that someone's had oral sex before is hardly compelling evidence that she's an adult. And if the defendant took it as such, he hadn't been reading the news, in which adults have been freaking out over teenagers' oral-sexing habits for at least a decade. All too often, discussions of victims' past sexual experiences turn into victim-blaming — she was slutty, she must have been asking for it, etc. This is exactly what rape shield laws are supposed to prevent. Hopefully the lower court will recognize this, and give the alleged victim the justice — and the protection — she deserves.
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