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‘Rape’ is a heinous crime in our society today which forces an individual to submit to forced sexual acts or violence, leaving behind unforgettable marks both mentally, physically and emotionally on the victim. In the late 1970s and early 1980s the Canadian Parliament under pressure from feminist activist, lawyers and legislators introduced the ‘rape shield’ law which, reformed all traditional rape doctrines and laws. According to this law the use and discussion of the assaulted person’s sexual history as evidence is limited in the court case, as an attempt to undermine the credibility of the victim’s testimony. However, there lies an innumerable amount of controversies over this law till date as to if it really helps maintain a just equilibrium during trials between the rights of the accused and the accuser.
Some people believe that due to the rape shield law any case before it begins is virtually won by the accuser as it forbids any form of questions which might be vital to the defendant. It has been proved on several accounts that the ‘rape shield’ law protects accusers from being questioned about previous false allegations which may have been launched in regard to rape. A significant example supporting the statement is that of Wisconsin resident Jessie L. Redmond who was convicted in 1993 of raping and providing cocaine to a fifteen year old girl. Redmond worked as a counsellor at a group home for alcohol and drug abuse by youths. He was arrested in December 1992 and the trials began. But eventually his case took an unexpected turn and lead to the suspension of his attorney. His original lawyer, Mike Sandy passed off as the girl’s lawyer in order to illegally attain the juvenile court file of the girl. During that time it was discovered that among the various details that the file contained it also had information on another allegation of rape that the girl had made in early 1992. After much police investigation that allegation was declared to be false and the girl was charged with contempt of court. Then it was discovered that the girl had lead her mother, a nurse and the police on a wild goose chase for a rapist just because she wanted to get the attention of her mother. This supplied as a powerful reason for the court to disbelieve her testimony eleven months later about having sex with another man, by showing that she had a motive for what would otherwise would be an ‘unusual fabrication’. But now the dilemma is that the statue protects complaining witnesses in rape cases from being questioned about their sexual conduct, but false charge of rape is not sexual conduct. Redmond was thus released by the court but was somewhat vindicated by the decision of the court, but in the process ended up loosing eight whole constructive years of his life because of some bizarre interpretation of a rape shield law. Studies have shown that 15% of all rape cases are connected to aggressive strangers, whom the victims have had sexual relations with in the past. Therefore, it is practically impossible for a woman to prove that she was raped by a man whom she had previously expressed interest in, flirted with, or even dated, even if she never engaged in sex with him prior to the assault occurring. Now the question that arises after knowing the ‘dark side’ of this law is that why do the accusers need to seek aid by concealing their sexual background to prove that they are on the right and not on the wrong against the presumed rapist. As the court is for ‘justice’ and not ‘sympathy’ and apparently the rape shield law is indirectly deriving apathy towards the victim.
Then the other side of the coin is in favour of the law, who mostly constitute of people fighting for women’s equality and rights. The primary reason for introducing this law was to reduce the psychological stress and burden that is put on these victims during the trials. As after all this brutality and harassment it is inhuman to pressurize them with questions which can bring about a series of memories from the incident back to them or also try vandalizing the character of the victim leaving possibilities of prostitution etc. There also have been several times many irrelevant evidences used by lawyers to prove that their client is right from the victim’s history like drug abuse, history of sexual harassment in family, etc to show that the accuser had imagined the entire thing.
However, I would approach the issue with the idea that everything has its own defined pros and cons. Similarly the rape shield law has a good cause of reflecting humanity in the court rooms towards the victims. At the same time the law does not as such acquit anybody of the crime and still the benefit of doubt lies with the accused that’s why there are court sessions for the final judgment. However it is also true that the rape shield law does forbid many questions like that of in the case of Mr. Darrach where the accused felt that he did not have a very fair trial as his important aspects related to his prior relationship with the complainant was not allowed to be brought up. Therefore, it is true that it is not in real terms all that fair to stop the defendant from bringing up points that might make a difference to his survival. Moreover if evidences from the past of the accuser’s can’t be used then evidences from the accused person’s past should also not be allowed to be in question. As then otherwise the accused does not have a good protection from the rape shield law. In conclusion I believe that this is a way for courts to treat sexual victims with fairness and humanity, while preserving the constitutional rights of the accused.
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@n@ndit@ Ghosh
Writing to me is the expression of our soul and the unconcious mind. It is a wave of communications through which we can express our thoughts in great magnitudes.
I experienced the joy of writing from my early teens, when a lot of tangent thoughts would set me up at my desk with a pen and a paper for hours together. It has been the most powerful and inspirational source to man-kind since time immemorial.
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Comments
RAPE (Serah Katusia)Tussi | Jul 17th, 2004
THATWAS SAD FOR ONE TO MAKE FALSE ACCUSATIONS. HOWEVER, WE NEED TO PUT FLAWLESS LAWS IN PLACE FOR RAPE VICTIMS. IT'S THE WORST THING TO HAPPEN TO ANY WOMAN, MOTHER, GIRL OR CHILD.
Flawless Laws and Arguing the Shield Enygma | Mar 26th, 2008
More of a comment to Serah, there really isn't any specific way to set the laws for this. The only way that a woman could truly prove that she was raped would be to do the highly unlikely, which would be to go to a hospital immediately afterwards with signs of bruising, traces tying the man to actually being the one to have commited the act, and more than anything, proof that it was actually rape as found by damage to the vaginal area. Otherwise, it could almost always be argued that the woman was simply ashamed of the actions that she had commited and wanted a way out. No, I'm not saying that this is always, or even rarely the case, but it has happened before.
The fact that one cannot bring up past offenses and/or sexual history is absolutely useless. Jogging the memory of the event would truly be an advantage to the victim rather than the defendant. The fright and emotions that would be shown, as well as the perfect memory of what happened when and where would be quite near the ultimate accusation.
These victims will remember what happened no matter if somebody else triggers the thought or not. It will stay with them for life. If they don't face the fact that it happened when they're attempting to charge their alleged rapist, then when should they?
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