In the United States, so-called “rape shield” laws date back to the 1970s. These laws limit the type of evidence a criminal defendant may introduce with respect to an alleged victim in criminal sexual conduct cases. The purpose of such laws is to afford criminal sexual conduct victims “heightened protection against surprise, harassment, and unnecessary invasions of privacy.” In 1974, Michigan became the first state to enact a rape shield law, followed in the same year by Iowa, Florida and California. By 1998, all fifty states and the federal government had some form of rape shield law on their books. Minnesota enacted its first version of a rape shield law in 1975. Since its enactment, Minnesota’s rape shield law has been amended several times and recodified.
In the years since they were enacted, many states’ rape shield laws have been challenged on several legal bases, most commonly as infringements of defendants’ rights under the Fifth and Sixth Amendments to the United States Constitution, which guarantee fair trials, the right to a complete defense, and the right to confront adverse witnesses. Minnesota courts have long recognized the constitutional implications that invoking rape shield holds for a defendant charged with criminal sexual conduct. Yet, despite the courts’ acknowledgment of these constitutional pitfalls, they have consistently and overwhelmingly found that an alleged victim’s interest in shielding his or her previous sexual conduct outweighs a defendant’s constitutional right to present a complete defense and to confront adverse witnesses. In some cases, courts have allowed their approach in applying rape shield to slip beyond the boundaries of statutory language and, intentionally or not, expanded the scope of the law to include acts that would appear excluded by the plain language of the statute. Although the Minnesota Supreme Court has waded into the waters of rape shield a handful of times since the turn of the twenty-first century, it is apparent from lower courts’ decisions that application of rape shield has become no less muddied and one-sided than it was in the 1980s. In fact, over the last twenty-five years, Minnesota’s law has become more of a sword in the hands of prosecutors, hacking away at defendants’ ability to mount a defense, than a shield to protect alleged victims’ sexual history from scrutiny.
This article will argue that, while rape shield laws serve a legitimate and important purpose in protecting victims from unnecessary and embarrassing disclosures, in the current climate of “#metoo” revelations and college tribunals that do not adhere to constitutional or evidentiary safeguards, it is more important than ever to ensure that defendants’ Fifth and Sixth Amendment rights are preserved in criminal court proceedings. While the language of Minnesota’s rape shield law may pass constitutional muster, the consistent manner in which courts have applied rape shield to infringe on defendants’ due process and confrontation rights is constitutionally suspect. Moreover, courts appear to have expanded application of rape shield beyond the language of the statute itself and have yet to be meaningfully challenged for doing so. Thus, the time has come for either appellate courts or the Minnesota Legislature to examine the application of rape shield and offer more precise guidance to lower courts to ensure that defendants receive a fair trial, are afforded the opportunity to present a complete defense, and are given a meaningful opportunity to confront the witnesses against them.