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Assault on Rape Shield Law Puts Victims at Risk, Says NJCASA in State of New Jersey vs. Anderson Garron Decision
Posted on: 07/31/2003
TRENTON, N.J. -- "No" may no longer mean "No" in cases of sexual assault in New Jersey, if a victim
has had a prior relationship with her assailant.
The July 24, 2003 5-1 decision from the State Supreme Court in State of New Jersey vs. Anderson Garron declaring the 1994
amendments to the New Jersey Rape Shield law unconstitutional and making it easier for defendants charged with sexual assault
to admit evidence of the victim's sexual history, may keep victims from reporting rape, notes the state's advocacy organization
for victims of sexual violence.
"The Court's decision deals a serious blow to the protections afforded victims of sexual assault under the State's
Rape Shield law. This case is going to have a chilling effect across the board -- not only on victims who will now be even
more reluctant to report sexual assaults, but it will seriously impact how cases of sexual assault are investigated and ultimately
prosecuted," says Deborah Shepherd, executive director of the New Jersey Coalition Against Sexual Assault.
New Jersey's Rape Shield law restricts a defendant charged with sexual assault from introducing evidence as to a victim's
prior sexual conduct. Intended to protect sexual assault victims from unwarranted intrusions into their private lives, Rape
Shield laws prevent defendants charged with sexual assault from unfairly attacking the victim's morality in attempt to cast
her as unchaste, not worthy of belief, or otherwise "having asked for it."
Victim advocates and those in law enforcement have long since recognized that allowing unlimited questioning about a victim's
prior sexual history worked against not only the victim but the entire criminal justice system. Fear of being revictimized
by debasing and humiliating cross-examination on their past discouraged victims from reporting and pursuing charges. In trial,
the jury's attention is diverted away from the issue of the defendant's guilt (assaultive conduct) by putting the victim on
trial for her "promiscuity." Without the protections afforded by Rape Shield laws fewer cases are reported, even
fewer cases are prosecuted, and rapes and sexual assaults go unpunished.
New Jersey's Rape Shield law, recognized as one of the strongest of the 50 states with similar laws on the books, permits
introduction of specific evidence of a victim's sexual conduct if, after a preliminary hearing outside the jury's presence,
a judge rules the proffered evidence satisfies the legal criteria for admission.
It is difficult to argue that the danger of false charges is greater for sexual offenses, particularly rape, than for
any other crime. If anything the statistics show just the opposite. Rape is one of the most underreported crimes. Moreover,
sexual assault complaints and allegations are carefully screened in most instances to assure that only legitimate cases go
to trial. No other category of crimes receives closer scrutiny by the police and prosecuting authorities.
At issue in State vs. Garron is the defendant's contention that sexual contact in this case was consensual and that evidence
as to the victim's prior conduct toward him would support that defense. The Supreme Court vacated Garron's lower court conviction
and ordered a new trial. In its ruling, the Supreme Court lowered the evidence standard set by the legislature. "In sum,
the Supreme Court opened the door for admission of a broad range of evidence of prior interactions between individuals to
prove consent on a subsequent occasion," says Shepherd.
"When it comes to sexual relations every person has the right not to be forced, coerced or intimidated. No means
No -- at any time. The defense of consent requires a showing that the defendant reasonably believed that the victim affirmatively
gave permission to the sexual contact at the time that contact occurred. The Supreme Court's decision now opens the door for
juries to consider contacts taking place days, months even years before the alleged act of sexual assault to decide whether
affirmative consent was given," she adds.
As noted by Justice Coleman in the one dissenting opinion, "Under the Court's holding today, it will be virtually
impossible for a woman to prove that she was raped by a man whom she had previously expressed interest in, flirted with, or
even dated, even if she never engaged in sex with him prior to the assault occurring. Today's decision essentially restricts
our Rape Shield Law to sexual assaults between victim and violent strangers, which translates into about fifteen percent of
rapes."
Source: New Jersey Coalition Against Sexual Assault
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