In the recent case in State vs. Lavalleur, the Nebraska Supreme Court found
that the defendant was denied his constitutional right to confront the
alleged victim when the court prevented him from asking the victim about
a relationship in which she was involved when she made the rape allegation.
In Lavalleur, the defendant sought to present evidence that the alleged
victim was in a sexual relationship with another person and that the allegations
of rape were merely an explanation as to why she did not return home to
her lover that night and why she went to another person’s house
to take a shower before returning home.
While the rape shield laws protect sexual assault victims from unnecessary,
irrelevant, and invasive questions about their sexual practices, the rape
shield law does not prevent the defendant from exposing an alleged victim’s
motives to fabricate an allegation. It is not unusual for an aggressive
criminal defense attorney to learn through the discovery process that
there are text messages, social media, photos, and other evidence that
may support a theory that the alleged rape was consensual.
While the alleged victim’s sexual history is protected by rules of
evidence, that protection does not trump a defendant’s constitutional
right to confront his accuser or expose motives for a false allegation.