Alleged rapist can’t offer victim’s prostitution conviction at trial

The Pennsylvania Supreme Court, in Commonwealth v. Rogers (just decided) held that an accused rapist may not offer evidence of the victim’s past prostitution convictions due to the rape shield statute, which forbids accused rapists from offering evidence of a victim’s past sexual conduct. The purpose of the rape shield statute is to stop defendants from improperly harassing victims of sex crimes by smearing their reputations (“she had sex with Joe, Paul and Juan so obviously she consented to sex with me”). It’s a laudable purpose. But when a woman has been convicted of prostitution, and a man claims he paid her for sex (as did Rogers in this case) such evidence must be permitted before the jury. It’s a matter of common sense fairness. It’s also a matter of constitutional law, under the Due Process clause which guarantees a defendant the right to present a defense. Barring this sort of evidence leaves the very real possibility that an innocent man (ok maybe not entirely innocent, but innocent of rape) could be convicted for a crime he did not commit. And we must remember that our founding fathers believed that it was crucial that we favor prevention of conviction of an innocent man over mankind’s innate desire to convict someone for every alleged crime. At the end of the day, if permitted to prevent his defense, the worst harm to the woman is that people find out she has been convicted of prostitution – the truth. The prosecutor can still argue all the reasons that the rape could have happened despite the history of prostitution in the past, and the defendant could still be convicted. Conversely, if a man cannot argue that he paid the woman for sex a simple “John”, looking at probation, could end up being convicted of rape, spending 10 years in prison, and undergoing a lifetime of notifying his neighbors that he is a convicted sex offender. This seems to be the product of what our legislature always does – pander to the politically favorable side of an issue (women who undergo character assassination at rape trials garner more sympathy in the public then men accused of rape) without thinking through the fallout of their politically favorable solutions (innocent men going to jail). Obviously we are criminal defense attorneys with a stake in one side of this decision -we would love to hear the viewpoints of others in the comments below.