Intimate Partner Sexual Abuse
Adjudicating This Hidden Dimension of Domestic Violence Cases
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Module IX: Evidentiary Issues

KeyPoints: Evidentiary Issues

Rape Shield Law

  • Rape shield laws barring inquiry into a victim's sexual history, were enacted to counter the long-held requirement that a woman could not establish rape unless she could also prove that she was "chaste."
  • Rape shield laws generally allow inquiry into prior sexual contact between the defendant and the complainant. Because the majority of rapes are perpetrated by someone the complainant knows and may have been intimate with, this exception undercuts the purpose of the rule.
  • A significant rape shield law issue in modern intimate partner sexual abuse cases is admission of photographs, videos and weblogs that the defense claims depict consensual sex and show that the alleged victim enjoyed the activities complained of.
  • A court considering whether to admit such evidence should examine closely the question of whether the evidence is truly probative of consent.

Prior Bad Acts

  • Evidence of a defendant's prior wrongful conduct has generally been held inadmissible if its sole evidentiary purpose is to demonstrate the defendant's propensity to commit the charged offense.
  • Increasingly, federal and state statutes have created exceptions for use of prior bad acts evidence in sexual assault and domestic violence cases, in a variety of contexts and for a range of purposes.
  • Because domestic violence and intimate partner sexual abuse often occur as part of a pattern of behavior or course of conduct, evidence of similar prior bad acts may be essential to understanding the import of the charged acts.
  • If evidence of prior bad acts is to be used, the connection between the other acts evidence and the permissible purpose for the current charged case should be clear, and the issue upon which the other acts evidence is said to bear should be the subject of genuine dispute.

Expert Witnesses

  • There are widespread misconceptions in the legal and lay communities about how sexual assault victims behave during and after the attack.
  • In an intimate partner sexual abuse trial, expert testimony concerning battered woman syndrome, rape-related posttraumatic stress disorder and marital rape may be essential to explain issues such as:
    • Why the complainant did not immediately leave her partner.
    • Why she experienced some sexual contact as assaultive, even when she consented on other occasions.
    • Why she did not resist the sexual contact she considered assaultive.
    • Why she has no visible physical injuries.
    • Why she did not report the assaults sooner.
    • Why intimate partner sexual abuse is especially harmful to victims.
    • Why the complainant's demeanor on the witness stand may not be what jurors expect.

Module IX → KeyPoints: Evidentiary Issues
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