Larry is charged with raping Jenny, a waitress at a local bar. According to the prosecution, Jenny was by herself at the bar at closing time when Larry came in off the street, displayed a knife, and demanded that Jenny take off her clothes and lie on the floor. Jenny did this silently. Larry had sexual intercourse with Jenny and then exited the establishment.
Larry's attorney argues that Jenny did not resist, and so there is not enough evidence to convict Larry of rape. Larry's lawyer plans to prove that Jenny loves sex and has slept with many customers at the bar, suggesting that sex with Larry may well have been consensual. The prosecution objects to the defense discussing Jenny's sexual history.
You are the judge. In the event that the prosecution proves its allegations, is the evidence sufficient to prove rape even though Jenny did not resist? Why or why not? If the matter goes to trial, will you allow the defense to present the evidence that it intends to present? Why or why not?
If I am the judge in this case, both of my rulings would go against Larry. I would rule that coercion did occur and that Jenny did not need to resist. I would also rule that Larry’s lawyers cannot bring up Jenny’s sexual history.
The first issue is whether Jenny could have been raped if she did not resist. While this depends to some degree on what state we are in, there is typically no law (as shown in this link) that says that a woman has to resist being raped in such a way that would cause greater danger to herself. It would be ridiculous, in my view, to say that Jenny would have to try to fight Larry when he has pulled a knife on her. She could reasonably expect that she would end up being cut by the knife in addition to being raped if she fought Larry. I would rule that the law does not require her to put up a fight in this instance.
The second issue is whether Jenny’s sexual history can be brought up in Larry’s defense. I would rule against Larry here as well. As we can see in this link, rape shield laws protect victims from having their sexual history brought out in court. There is an exception made if the defense alleges that the victim has previously had consensual sex with the accused, but Larry is not claiming this. Instead, he is essentially trying to argue that if she had sex with some patrons of the bar, she must necessarily have been willing to have sex with him. This sort of allegation is just what rape shield laws are meant to protect victims against.
For these reasons, I would rule against Larry. If the prosecution proves its allegations, he is guilty of rape regardless of the fact that Jenny did not physically resist him. When Larry’s defense team makes its case, it may not bring up Jenny’s sexual history with other bar patrons.