Professor Bennett Capers Discusses ‘Rape, Truth, and Hearsay’ on Excited Utterance Podcast
Professor Bennett Capers recently appeared on Excited Utterance, a podcast focusing on scholarship on evidence law and proof, to discuss his forthcoming article “Rape, Truth, and Hearsay,” which will appear in the Harvard Journal of Law and Gender.
Capers discusses Federal Rule of Evidence 412, the “Rape Shield” rule, which, he says, doesn’t work and fails to protect victims while simultaneously imposing significant costs on defendants. In civil cases, courts may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim or unfair prejudice to any party. Capers points out that the rule is a product of the 1970s and reflects social mores and values at odds with contemporary beliefs and practices, as well as being ill-constructed to deal with acquaintance rape cases that have emerged since.
“It seems to me the exception allowing evidence of a victim’s sexual history with respect to the defendant is an odd exception to have, if you really believe that a victim’s prior sexual experience is irrelevant,” Capers said. “And if we believe, as we do now in 2017, that anybody can be raped, even if the person accused of raping is a husband or a boyfriend, that exception seems strange.”