Limitations on the Right to Introduce Evidence Pertaining to the Prior Sexual History of the Complaining Witness in Cases of Forcible Rape: Reflection of Reality or Denial of Due Process?

Authors

Frederick Eisenbud

Abstract

Not all trials for rape involve the issue of consent. In statutory rape cases, for example, the offense is the mere act of intercourse with a woman who is below a specified age, regardless of her consent. This article is limited to the law as it applies to forcible rape, i.e., the act of intercourse with a woman against her will. Two issues will be discussed. The first is whether the prior sexual history of a woman as it relates to people other than the defendant is relevant evidence from which an inference may be drawn as to whether she consented to have intercourse with the defendant. The second is, if such evidence is relevant, may it legitimately be kept out of the trial by the act of a state legislature or otherwise?

Recommended Citation

Eisenbud, Frederick (1975) "Limitations on the Right to Introduce Evidence Pertaining to the Prior Sexual History of the Complaining Witness in Cases of Forcible Rape: Reflection of Reality or Denial of Due Process?," Hofstra Law Review: Vol. 3: Iss. 2, Article 2.
Available at: https://scholarlycommons.law.hofstra.edu/hlr/vol3/iss2/2