Ensuring Fair Trials for Victims of Sexual Assault: PA Legislation Will Help Hold Perpetrators Accountable

September 27, 2018

Greg HeadshotBy Greg Rowe, Director of Legislation and Policy PDAA

Being a crime victim is traumatic. Having the courage to report and come forward is harrowing. Unfortunately, when crime victims participate in the justice process, they are often victimized again when they are cross-examined by the defense attorney. The victim, suddenly, is on trial and must defend himself or herself against character and other attacks.

This reality is especially true in sexual assault cases. While Pennsylvania law generally helps to ensure that victims are treated fairly, there still are loopholes in place right now that make it less likely that victims of sex crimes and victims that have intellectual disabilities will be able testify against their perpetrators. Along with our victim advocates, we believe that our laws need to better protect these victims.

We are hopeful that bipartisan legislation to fix three such significant loopholes could become law this year.

Here are the three fundamental problems we are trying to remedy and the proposals to fix them.

First, under Pennsylvania law, if a rape victim testifies at trial, defense counsel can ask her whether she was raped in the past when the purpose of the question is for no other reason than to impugn her character. Make no mistake, this happens. This problem is particularly striking because under our existing rape shield law, that same victim cannot be asked about her prior consensual sexual history. In other words, the law protects against questions regarding prior consensual sex but permits questions about prior nonconsensual sex like rape. This shortcoming needs to change. HB 2324, sponsored by Representative Bryan Barbin (D – Cambria & Somerset) would make this important and necessary improvement.

Second, in Pennsylvania, out of court, or hearsay, statements are typically not admissible unless they meet some specific exception that demonstrates they were made under reliable circumstances. One such exception, called the “tender years exception,” permits the admission of hearsay statements made by young children if the statement is reliable and the child is not available to testify. Yet under current law, if the same statement was made by a teenager or adult with an intellectual disability or autism under the same reliable circumstances, the statement is not admissible. This loophole is extremely problematic because people with intellectual disabilities are sexually assaulted at a rate of seven times higher than those without disabilities and are targeted because perpetrators know they may well have difficulty testifying later. Our laws need to better protect those with intellectual disabilities, or autism, who have been victimized. HB 2325, sponsored by Representative Garth Everett (R – Lycoming & Union) would make this critical change.

Third, each of these important rules—the rape shield and tender years exceptions—fails to apply to a complete number of sexual or violent offenses. While they cover cases such

as rape, they do not cover cases involving human trafficking, sexual exploitation of children, and corruption of minors involving sexual contact. HB 2321, sponsored by Representative Stephen Bloom (R – Cumberland) would enact this common-sense enhancement.

The PA House of Representatives approved each of these bills virtually unanimously in June, and have been approved by the Senate Judiciary Committee. They are now awaiting consideration by the full PA Senate.

We hope that when the Senate returns this fall, its Judiciary Committee will quickly take up these bills and that the full Senate approve them so that Governor Wolf can sign them into law.

Our most vulnerable victims would benefit tremendously from the bills. Please contact your State Senator and encourage them to support these bills.