Status on Trial: The Racial Ramifications of Admitting Prostitution Evidence under State Rape Shield Legislation

This Note addresses the exceptions in many states’ rape shield laws that permit the admission of the complainant’s status as a prostitute into evidence. While these laws take various forms, New York’s rape shield law contains a legislated exception to its shield, which allows for the admission of the complainant’s prostitution convictions that have occurred within three years of the alleged rape. Others contain exceptions that permit the admission of prostitution and other sexual history evidence through a judicial determination of relevance or under “consent” and “credibility” rationales that support an inference that complainants with a history of prostitution or unchastity are either more likely to have consented to the alleged rape or are less likely to be veracious witnesses. Not only do these exceptions rely on an antiquated assumption of the sexual propensities of prostitutes, but they also disregard and devalue the occupational hazards of sex work. As a result, they particularly marginalize the claims of prostitutes of color—a group exposed to a disproportionately high risk of sexual violence in the prostitution industry. To remedy this impact, New York’s legislated prostitution exception as well as the credibility and consent rationales for admitting prostitution evidence must be eliminated. Without a reform that affords protection to this class of women, violence against prostitutes of color, in particular, will go unpunished as rape law’s preference for “chaste” complainants precludes the success of their claims.