Rape shield laws shield a woman’s sexual past from being used against her In court. They do not shield a man’s sexual past from being used against him
in court. When first suggested by feminists, the laws were assumed to be a flagrant violation of our constitutional right to due process (because they shielded one party more than the other in the trial and therefore denied one party a fair trial) They were also assumed to violate the equal protection clause of the Fourteenth Amendment because they protected men less than women.
However, as people were increasingly convinced that women had no motivation to lie about rape, the political atmosphere changed. Women who claimed they were raped were virtually assumed to have already been victimized, and therefore dragging out her sexual past in court appeared only to be double victimization. As courts began to buy this assumption, they began to reason that women needed extra protection in order to have equal protection By the early 1990s, the Supreme Court upheld this as the law of the land.’3
We have seen, though, that not only are there numerous motivations to lie about rape, there are a half dozen or so social incentives to lie about rape Just as importantly, we have also seen that a false accusation is its own form of rape. Once we know this, we know that it is a violation of due process and equal protection to shield a woman’s sexual past during a trial more than a man’s. The purpose of a trial is to determine whether or not there has been a rape, not to assume who needs the shielding during the trial. The job of a lawyer is to convince the judge that the past is relevant, it is not the job of the law to assume the female’s sexual past cannot be used against her but the male’s can.
Practically speaking, then, when a woman accuses a man of rape, the FBI or police seek out women from the man’s sexual past, tell them that he’s been accused of rape, ask them if they too had ever felt raped by him, and if they say, "Well perhaps once when. . " they are encouraged to testify to "stop this from happening to other women.” In contrast, as of the most recent Supreme Court decision, he cannot even present evidence of her having a previous sexual relationship with him unless he first notifies the court in time for her to prepare her defense 34
And practically speaking, as the trial is occurring, feminists are brought on TV to tell us that rape is the only crime for which the victim is disbelieved. This is an incredible statement because thus far we do not yet know who the victim is. In criminal law, the person claiming to be the victim is aluays legally disbelieved and the evidence always cross-examined until the person being accused is proven guilts’ beyond a reasonable doubt. This is what distinguishes freedom from a dictatorship. When we ignore this constitutional protection of the accused, we have McCarthyism, fascism, and witch-hunts.
Rape shield laws have been declared constitutional because, in our heart of hearts, no one wants to be suspicious of a woman who claims she was raped. And conversely, no one wants to defend a potential rapist unless he’s someone we love The rape of a woman places the Most-Evil Male against the Most-Innocent Woman — in archetypal fashion. None of our initial instincts is to defend the Most-Evil Male