The common law crime of rape was defined as "a man engages in intercourse with a woman not his wife, by force or threat of force, against her will and without her consent" (Estrich, 1987, p. 8). Since the women's rights movement of the 1970s, the definition of rape has changed. Most states changed the definitions of sex crimes as well as their names from "rape" to "sexual assault" and "aggravated sexual assault," crimes which include all persons, whether male or female, adult or minor, single or married, as both offenders and victims.
Federal Rules of Evidence (FRE) also have been added and amended to focus trials on relevant evidence instead of unwarranted attacks on the victim's reputation. These are called "Rape Shield Laws," and they are designed to prevent the defense lawyer from introducing irrelevant questions into the trial. In addition to FRE, states have their own rules of evidence to bring uniformity to the trial process. These rules govern the process by which attorneys introduce evidence or make objections to opposing counsel's evidence. For example, is testimony on the victim's provocative clothing really relevant to the issue of lack of consent to sexual intercourse? Does the victim need to show that she or he physically resisted the attack, as in the common law requirement? Even with these rules in place, occasional vestiges of the old system remain entrenched within certain laws.
Source: Estrich, S. (1987). Real rape (p. 8). Cambridge, MA: Harvard University Press.
To prepare for this assignment:
• Review the assigned pages of Chapter 11 in your course text, Contemporary Criminal Law: Concepts, Cases, and Controversies. Focus on the elements of sexual assault and the criminal defenses for sexual assault.
• Review the article "Federal Rules of Evidence," and consider how the federal rules of evidence affect the prosecution and defense of sexual assault.
• Find the rules of evidence or statute for your state using the expert pages website. If you live outside the United States, select a U.S. state of your choice. Note that not every state has a specific rule of evidence, or rule labeled as such, regarding sexual assault cases. Some states' rules of evidence appear in their statutory codes.
• Select one federal and one state rule of evidence or statute that might affect the prosecution of sexual assault, and think about how it does so.
• Select one federal and one state rule of evidence or statute that might affect the defense of sexual assault, and consider how it does so.
The assignment (1-2 pages):
• Explain how at least one federal and one state rule of evidence or statute might affect the prosecution of sexual assault. Be specific.
• Explain how at least one federal and one state rule of evidence or statute might affect the defense of sexual assault. Be specific.