Reorienting the Rules of Evidence

Latent heterosexism is deeply engrained in the common sensibility of the American legal system. In sexual assault cases, that latent heterosexism reveals itself in disparate admissibility rulings and practices regarding evidence that purports to demonstrate a defendant's sexual orientation. When defendant and victim are of the same gender, evidence that a defendant is straight is used to prove innocence, while evidence that a defendant is gay or bisexual is used to prove guilt. This evidence is used to advance narratives invoking anti-gay and anti-bisexual stereotypes of deviance and criminality.

Similar arguments are not made in cases involving opposite-gender defendant and victim. This disparate over-admission and misuse of evidence of defendant sexual orientation in same-gender sexual assault cases arise from a fundamental misunderstanding of both the nature of sexual orientation and the etiology of sexual assault. Although existing evidence doctrines provide a robust framework through which to properly exclude most sexual orientation evidence, chronic under-utilization of that framework calls for a reorientation of the rules of evidence towards a deeper understanding of sexual identity and behavior, and a more honest accounting of sexual prejudice and negative sexual stereotypes. This Article explores theoretical and scientific models of sexual orientation and sexual assault, demonstrating the significant attenuation between sexual orientation, desire, and assault.

When properly grounded in those complex realities, the doctrines of logical relevance, character evidence, and the legal relevance balancing test operate to exclude most evidence of defendant sexual orientation in sexual assault cases. Crucially, this analysis must be highly cognizant of the powerful heterosexist forces that both overtly and implicitly bias fact-finders and militate against admission of this evidence in nearly all cases.