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58 Howard Law Journal 411 (2015)


This essay develops a theme introduced in Rape and Culture of the Courtroom written by Andrew Taslitz. It examines the cases in which judges allow evidence of the victim’s sexual history and proclivities because, in their estimation, excluding such evidence would violate the constitution (an exception to rape shield in Fed. R. Evid 412). The review of these cases demonstrates the persistent power of patriarchal stories and documents how the constitutional exception sometimes indicates a resistance to the entire enterprise of rape shield. In particular, it focus on Gagne v. Booker, an en banc decision from the Sixth Circuit, which presents a fascinating case study of the tension between rape shield protections and concerns for the accused’s right to present a full defense. It is particularly interesting because the accused’s concerns about deprivation of vital evidence rely squarely on rape myths and assumptions about women’s sexuality. Finally, the author speculates on what she believes are the truly difficult cases, those involving charges of interracial rape, where knowledge of the victims proclivities might be essential for countering jurists racist assumptions about the accused.