St. Mary's Law Journal


The treatment of rape victims in criminal prosecutions has become and remains a matter of intense public and legal interest in America. The conventional use of evidence of a rape complainant's prior sexual history in rape prosecutions was a major focus of the rape reform movement. A major consequence of the movement for reform is the federal government and forty-nine states enacting rape shield laws limiting the admissibility of evidence concerning the complainant’s sexual history in rape prosecution. This article analyzes the admissibility of evidence of a rape complainant’s prior sexual conduct from its common law origins concentrating on the issues of consent, the victim’s credibility, physical evidence of intercourse, and the promiscuity defense. At the federal level, amidst criticism against existing common law rules admitting evidence of rape victims’ prior sexual history, the United State enacted Federal Rule of Evidence 412. Rule 412, in a departure from common law, prohibits all reputation and opinion evidence concerning a rape complainant’s prior sexual behavior. In Texas, prior to the enactment of a rape shield statute, Courts developed the law concerning the admissibility of a rape victim’s prior sexual conduct. Yet, as at common law, sections 21.13 and 22.065 allowed admissibility of evidence of a victim’s prior sexual conduct for purposes of impeachment in limited circumstances. In Texas, sections 21.13 and 22.065 and rule 412 have improved many aspects of common law admissibility of the complainant’s prior sexual conduct by virtually eliminating such evidence. The current law admits promiscuity evidence in sexual offenses involving children. The probative value of such evidence is dubious and the legislature should limit its admissibility. Although some criticism has been levied against rule 412, its value is apparent in light of the egregious treatment afforded rape victims in the past.


St. Mary's University School of Law