Should Defendants Be Allowed to Subpoena Rape Victims and Force Them to Testify at Rape Shield Hearings?
In the federal system and all states, “rape shield” rules require pre-trial hearings on whether evidence relating to a rape victim’s prior sexual history is admissible at trial. For example, Utah’s Rule of Evidence 412 (which parallels Federal Rule of Evidence 412) requires a defendant who intends to introduce a victim’s prior sexual history evidence to make a detailed proffer of the relevance and purpose of the proposed evidence. The trial judge then holds a hearing and determines the admissibility of the evidence. But what if the defendant wants to subpoena a victim to the hearing and question her about prior sexual history as part of that determination? Is forcing a rape victim to testify consistent with the rule?
Tomorrow, the Utah Supreme Court will hearing argument on this question. Along with the Utah Crime Victim’s Legal Clinic, I represent a minor victim of rape. I will argue that forcing rape victims to testify at rape shield hearings is inconsistent with the structure and purpose of such hearings. A Utah decision on this issue could be influential, since the text of Utah’s rape shield rule is similar to many others.
Here is the opening paragraph from my brief for the victim, T.T.:
This appeal involves an important question regarding the proper operation of Utah’s “rape shield” rule, Utah R. Evid. 412. The appeal is brought by T.T. from a district court order denying T.T.’s motion to quash a defense subpoena, which seeks to force her to testify at a rape shield hearing to be held under Utah Rule of Evidence 412. Because Utah’s rape shield rule is designed to prevent rape victims from being forced to testify about sexual issues, the district court order forcing T.T. to testify should be overturned.
The underlying facts in the criminal case involve a rape char
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