Added: October 25, 2008 – Last updated: April 25, 2015


Author: Michelle J. Anderson

Title: From Chastity Requirement To Sexuality License

Subtitle: Sexual Consent and a New Rape Shield Law

Place: Villanova, PA

Publisher: Villanova University School of Law

Year: September 2002

Pages: 147pp.

Series: Villanova Public Law and Legal Theory Research Paper Series No. 2002-05

Language: English

Keywords: 20th Century | U.S. History | Prosecution: Laws


Link: Social Science Research Network (Free Access)


Author: Michelle J. Anderson, School of Law, City University of New YorkWikipedia

Abstract: »Historically, a rape defendant at trial could offer evidence that the complainant was previously unchaste in order to discredit her testimony. Professor Michelle Anderson calls the conditioning of a rape victim's vindication on her sexual virtue the "chastity requirement" in rape law. By the early 1980s, almost every jurisdiction in this country had passed a rape shield law, which curtailed defendants' abilities to admit complainants' sexual histories. Too often, however, Anderson argues, these legal shields function as sieves, particularly in acquaintance rape cases when the complainant is deemed promiscuous. Crucial holes in shields admit sexual history evidence when the complainant has been intimate with the defendant before, when the defendant claims that he held a reasonable but mistaken belief as to her consent, or when the complainant has previously engaged in a pattern of sexual conduct, prostitution, or other promiscuity. Anderson contends that rape shields have failed to defend these women because the law has maintained crucial aspects of the chastity requirement. It is time for the law to reject the ancient norms of that requirement fully, Anderson argues, and to embrace, instead, a sexuality license, which would protect rape complainants from suffering the negative legal consequences that follow judgments about their prior sexual lives. Anderson proposes a new rape shield statute designed to end the continued admission of irrelevant and prejudicial evidence of the complainant's sexual history in rape trials and to vindicate the new norms of the sexuality license.« (Source: Working Paper)


  Introduction (p. 3)
  I. The Chastity Requirement (p. 13)
    A. The Virginity Requirement and English Common Law (p. 14)
    B. The Chastity Requirement in America (p. 18)
    C. The Evidentiary Function of Chastity from 1900-1970 in the United States (p. 25)
  II. Rape Shield Laws Respond to the Chastity Requirement (p. 40)
    A. Types of Rape Shield Laws (p. 40)
      1. Legislated Exceptions Laws (p. 41)
      2. Constitutional Catch-All Laws (p. 44)
      3. Judicial Discretion Laws (p. 45)
      4. Evidentiary Purpose Laws (p. 46)
    B. The Sexual Privacy Purpose of Rape Shield Laws (p. 47)
  III. Rape Shield Laws Fail to Defend Against the Chastity Requirement (p. 58)
    A. Legislated Exceptions (p. 62)
      1. Prior Pattern Sexual Conduct with Third Parties (p. 62)
      2. Prior Sexual Conduct with Third Parties to Prove Reasonable but Mistaken Belief as to Consent (p. 78)
      3. Prior Prostitution with Third Parties (p. 82)
      4. Prior Sexual Conduct with the Defendant (p. 89)
    B. Judicial Exceptions (p. 106)
      1. Prior Sadomasochistic Sexual Conduct with Third Parties (p. 106)
      2. Prior Public Sexual Conduct with Third Parties (p. 115)
  IV. Sexuality License (p. 120)
  V. New Rape Shield Law Responds to the Sexuality License (p. 127)
    A. Exception One (p. 129)
    B. Exception Two (p. 130)
    C. Exception Three (p. 134)
  VI. Constitutionality of a New Rape Shield Law (p. 136)
  Conclusion (p. 146)

Note: Anderson, Michelle J. »From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law.« George Washington Law Review 70 (2002): 51-162.