The relevance of trial talk for rape shield legislation (with a postscript)

Abstract

In this article I examine the rape shield statutes 2 . Using data from the Kennedy Smith rape trial 3 , I explore how rape shield statutes apply to and function through the language of evidence in testimony. My objective is to show how the social organization of talk mediates between legal statutes and trial practice. I thus aim to demonstrate how law, language, and society work together during the rape trial to severely constrain the applicational intent of the shield statutes. I further argue that while feminist researchers and proponents of rape reform have employed trial talk as an unexplicated and taken-for-granted resource in pursuit of legal change, they have consistently neglected the study of this talk and the emergent moral inferences constituted through it as topics of serious consideration in their own right. This neglect, as I will show, has policy implications for both the implementation and evaluation of legal reform.