Expand Rape Shield Protections

Currently, the Criminal Procedure Law establishes a "rape shield law" in prosecutions involving a sex offense (CPL 60.42). Rape shield laws protect victims of sex offenses from having their past sexual conduct raised in the prosecution of their abuser. Such laws were enacted as a response to the widespread and improper tactic of using the victim's prior sexual activity as a character attack, thus presenting the victim to the jury as an immoral person and unworthy of belief. New York's rape shield law recognizes that a victim's prior sexual activity is, in most circumstances, irrelevant to the issues at a trial for a sex offense. In order to protect a defendant's constitutional right to confront his or her accusers, the law provides several exceptions if the defendant can establish the particular relevance that the victim's prior sexual conduct has to the defense of the charges (see CPL 60.42). Nota- bly, however, CPL 60.42 expressly limits a sex offense to an offense "defined in article one hundred thirty of the penal law," thus excluding sex trafficking offenses, which are codified in section 230.34 of the Penal Law. As a result, in sex trafficking prosecutions, where key witnesses are often trafficked victims, introduction of evidence of the victim's prior sexual conduct is not prohibited by CPL 60.42. Instead, cross examination of the trafficked victim's prior sexual conduct is subject only to the sound discretion of the court to control the scope of cross-examination, and the requirement that the defense establish that the past sexual conduct is "relevant and admissible in the interest of justice" (see CPL 60.43). We believe that sex trafficking should be recognized as a "sex offense" for the purpose of protection under the rape shield law.

Both California and Washington D.C. provide explicit protection for victims of sex trafficking from having their past sexual conduct, including past prosecutions for prostitution, paraded before a jury. California's statute provides that "(e)vidence of sexual history or history of any commercial sexual act of a victim of human trafficking, as defined in (the California) Penal Code, is inadmissible to attack the credibility or impeach the character of the victim in any civil or crim- inal proceeding" (Ca. Evidence Code § 1161(b)). Similarly, Washington D.C. enacted a statute that provides, "Pin a criminal case in which a person is accused of trafficking in commercial sex, . . . sex traffick- ing of children, . . . or benefitting financially from human traffick- ing, . . . reputation or opinion evidence of the past sexual behavior of the alleged victim is not admissible. Evidence of an alleged victim's past sexual behavior other than reputation or opinion evidence also is not admissible, unless such evidence other than reputation or opinion evidence is admitted in accordance with (the Washington D.C. rape shield law)), and is constitutionally required to be admitted" (D.C. Code § 22-1839). The likelihood that the complainant in a sex trafficking case has a history of prior unlawful sexual conduct is self-evident. Unlike crimes that usually are unrelated to sexual misconduct (e.g., robbery, burglary, homicide, etc.), charges of sex trafficking often will involve victims with histories of prior sexual misconduct. It is therefore inev- itable that a trafficker will seek to use the past sexual conduct of his or her victim in ways that have no proper bearing upon the trafficker's own guilt or innocence. The sad reality is that victims of sex traffick- ing often are victimized over the course of months or years, often by different traffickers. Although prior acts of prostitution or other sexual conduct may superficially be relevant when testing a complainant's current claim that he or she is being trafficked, repeated victimization is, by itself, not a basis to allow impeachment. It would be a terrible irony if the long term trafficking of a person is used by the trafficker to defeat the very charge of trafficking being prose- cuted. As is true in other sex offense prosecutions, evidence of a sex trafficking victim's prior sexual conduct would continue to be admissi- ble for a number of reasons outlined in current law including that the victim was actually convicted of a prostitution offense within the past three years (CPL 60.42 (2)) or where evidence of the prior sexual conduct of the victim was "relevant and admissible in the interests of justice" as determined by the court (CPL 60.42 (5)). This measure would simply treat the alleged victims of sex trafficking crimes in the same way other alleged sex offense victims were treated with respect to prior sexual conduct evidence.

This measure, which would have no fiscal impact, would take effect imme- diately.

Legislative history

2017: S.5070- Passed Senate.