On May 18, the Supreme Court of Pennsylvania confirmed that the state rape shield law does not permit defendants to introduce a victim’s sexual history with third parties, including prior acts of prostitution, as a defense tactic attempting to prove consent.
The name of the case is Commonwealth of Pennsylvania vs. Eric Rogers.
Rogers was convicted of violently raping and assaulting three women and two teenage girls between March 2011 and March 2012 in West Philadelphia.
In his appeal, Rogers claimed that he was treated unfairly because he was not allowed to submit evidence of prior prostitution convictions of two adult victims to support his defense of “financially-induced consent.”
The Court rejected this argument and stated, “The proofs offered by Appellant are the very types of items that the Rape Shield Law is designed to preclude. They would cast aspersions upon the moral character of the complainants and do little to prove consent at the relevant time—even if the victims had engaged in prostitution on other occasions.”
WLP applauds the decision.
In July 2020, Attorneys at the Women’s Law Project, in partnership with AEquitas, authored and filed an amicus curiae (“friend of the court”) brief to the Supreme Court of Pennsylvania on behalf of 26 additional organizations devoted to improving judicial and societal responses to victims and survivors of sexual abuse. In our brief, we argued in support of the determinations by the trial court and Superior Court that Pennsylvania’s Rape Shield Law does not permit the introduction of evidence of a victim’s criminal record for prostitution-related offenses to prove consent.
“Engaging in commercial sex with other persons, whether by choice or not, has no relevance to the veracity of a rape allegation by another person,” says Terry L. Fromson, WLP managing attorney and co-author of the brief. “To declare otherwise is simply an attempt to eliminate consequences for sexual violence against certain people—namely low-income women and Black women, because Black women are more likely to be arrested for prostitution than white women. Allowing such history to be submitted as evidence of consent undermines the intent of Pennsylvania’s Rape Shield Law.”
“We are relieved the Court confirmed that alleged history of prostitution cannot be submitted as evidence of consent in sexual assault cases. A person’s sexual choices or behavior before an assault bears no relationship to the veracity of a complaint of sexual violence,” says Amal Bass, WLP director of policy and advocacy. “Early American rape law, like the criminal legal system at large, was explicitly rooted in white supremacy and sexism. We still have such a long way to go, but this ruling is one more step toward equity in this system for the people we serve who choose to rely on it.”
Thank you to fellow amici: AEquitas, American Civil Liberties Union, American Civil Liberties Union of Pennsylvania, California Women’s Law Center, Chicago Alliance Against Sexual Exploitation, End Violence Against Women International, Equal Rights Advocates, Feminist Majority Foundation, Freedom Network USA, Gender Equality Law Center, Harvard Law School Gender Violence Program, Institute to Address Commercial Sexual Exploitation (CSE Institute) and Villanova University, Charles Widger School of Law, Legal Momentum, National Crime Victim Law Institute, National Crittenton, National Network to End Domestic Violence, National Organization for Women Foundation, National Women’s Law Center, Pennsylvania Coalition Against Domestic Violence, Pennsylvania Coalition Against Rape, Pennsylvania NOW, Philadelphia NOW, Southwest Women’s Law Center, WOAR-Philadelphia Center Against Sexual Violence, Women Against Abuse Legal Center, Women’s Law Center of Maryland, Inc., and World Without Exploitation.
Women’s Law Project is a public interest law center in Pennsylvania devoted to advancing and defending the rights of women, girls, and LGBTQ+ people in Pennsylvania and beyond. As a non-profit organization, we can not do this work without you. Please consider supporting our work.
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