Legislating "Legitimate" Victims: How the Jailhouse Exclusion Denies Inmates the Protection of California's Rape Shield Statute

  • June 2016
  • 3 Stan. J. Crim. L. & Pol'y 55
  • Article

The passage of rape shield statutes protecting victims’ privacy in the 1970s and 1980s changed how the law treats rape victims. However, this rape reform movement gives us the legacy of a puzzling exclusion from California’s rape shield statute for sexual assaults that occur in jail or prison. While sensitive questions about sexual history are off-limits when other victims testify, inmates do not have this protection. Yet since the California Legislature passed what it nicknamed the “jailhouse exclusion” in 1981, society and the law have recognized the existence and impact of prison rape. The jailhouse exclusion is an example of how prison rape survivors face barriers reminiscent of the barriers that all rape victims faced fifty years ago.

Since the jailhouse exclusion is perplexing and is incompatible with the rape shield statute’s purpose of protecting victims, this article’s first focus is to tell the story of its origins. It then discusses its impact, especially in light of subsequent legal developments to prevent prison rape, and calls for the California Legislature to repeal it. It is important to reconsider the jailhouse exclusion because of its message: while most rape victims are spared questions about their past sexual history—questions that have no bearing on consent—it is OK to put an inmate-victim on trial. There are enough barriers to eliminating prison rape; it is time to remove this one from the California Evidence Code.

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