New Bill Would Bring Social Media Posts Under the Rape Shield

This post originally appeared in the March 26 Sacramento Report. Get the Sacramento Report delivered to your inbox.

It’s been more than four decades since California passed what’s known as a “rape shield” law to protect alleged victims of sexual assault from having the way they dress or whom they’ve slept with introduced as evidence to discredit their testimony in a criminal trial. All 50 states now have similar laws on the books because the possibility of being humiliated on the stand was discouraging rape victims from coming forward.

But those laws didn’t anticipate Facebook or Twitter and all the ways social media photographs and comments can be misconstrued. Social media, by its nature, is performative, but that doesn’t mean a woman who posts a sexy photo on her Facebook page was “asking for it.”  Patrick Espinoza, chief of the Sex Crimes and Human Trafficking Division for the San Diego County District Attorney’s Office, said his deputies regularly deal with defense attorneys who try to skirt rape shield laws and introduce social media material as evidence during cross-examination.

“Often times, when a sexual assault victim learns that the defense lawyer is mining her social media account for evidence to use against her in a sexual assault prosecution, trauma and anxiety to the victim is further increased,” Espinoza told Voice of San Diego.

Earlier this year, Assemblywoman Tasha Boerner Horvath introduced AB 341, which would add “any text, image, video, or picture, which depict sexual content, sexual history, nudity or partial nudity, intimate sexual activity, communications about sex, sexual fantasies, and other information that appeals to a prurient interest, unless it is related to the alleged offense” to evidence protected by California’s rape shield law. The bill was sponsored by San Diego District Attorney Summer Stephan.

AB 341 doesn’t bar a defendant from introducing social media material as evidence, but a judge first must find that the evidence is relevant — the same rule that applies to any evidence protected by the rape shield law.

So far, the bill has faced no opposition and was passed unanimously by the Assembly’s public safety committee earlier this week.

In a statement, Boerner Horvath said the law will protect the dignity of accusers.

“We already have laws on the books to help ensure victims seeking justice for their attackers won’t have their entire lives subjected to public scrutiny, and those protections should be extended to their social media activity as well.”