In Nevada, criminal courts do not allow defense attorney to force victims of rape to discuss their sexual history. Defense attorneys would love the opportunity to attack the victims of rape. If a victim has had a lot of sex with a lot of people, well then, maybe the victim was not really raped. Maybe the victim was not the victim. Maybe the accused rapist is the victim. This is the logic that Defense attorneys would love to argue in criminal cases to get their clients off.
Nevada law won’t allow it. We Nevadans believe that victims of rape should not again be traumatized on the witness stand in criminal court. Heck, victims of rape may not even come forward if they know that a jury, and their parents will learn about their sexual history. In other words, the criminal defendant does not get the right to attack the victim’s sexual morality—all the while the Defendant’s sexual morality is called into question. We call this a “rape shield” law. Seem fair to you?
However, the Nevada Supreme Court has just clarified that the rape shield law does not apply to civil cases. So, if a rape victim decides to sue the rapist for damages, for instance for emotional distress, well—in that case the victim’s sexual morality can be called into question. Seem fair to you?
Let me see if I understand the distinction. We don’t allow a criminal defendant who is looking at years of imprisonment to provide evidence in court that says, “But she was leading me on—she had a reputation of sleeping with guys like me. In fact, three of my buddies just had sex with her the night before and they said that I would be next.”
However, a civil defendant being sued for rape, where only money is the punishment, and not imprisonment, CAN provide such evidence in court.
Do we really care more about money than we do about liberty? Should the “rape shield law” exist? If so, should it be used in all cases, not just criminal.
Well, the Supreme Court did think a little about these questions because it stated that, even though rape shield does not apply in civil cases, “[n]onetheless, we conclude that if necessary the district court may limit the discovery of an alleged victim’s sexual history under NRCP 26 to protect the victim’s interests.”
So, if you want to read this opinion, it is called SONIA F., AS PARENT AND GUARDIAN AD LITEM OF J.M., vs. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK, AND THE HONORABLE ELISSA F. CADISH, DISTRICT JUDGE and is located at: http://www.nevadajudiciary.us/index.php/advanced-opinions/492-sonia-f-v-dist-ct-.html
By: Anthony M. Wright, JD