Before I became a law professor, I was a prosecutor. Like most prosecutors, I tried a wide range of cases. My time in that role gave me a ground-level view of something that has stayed with me as a scholar: the ways in which the criminal justice system can fall short of its own stated goals — among them, promoting the fair and equitable treatment of victims of sexual violence and just outcomes for those victims. In sexual assault cases in particular, I observed how procedural rules and embedded assumptions could impede victim participation in the process — how survivors were questioned about their own histories and conduct in ways that deflected attention from the conduct of the accused. That experience oriented my scholarly focus toward the evidentiary rules and legal standards that shape how sexual assault cases are prosecuted and adjudicated.

One of the questions I have been pursuing across multiple articles and, most recently, in comparative work presented at the Korean National Assembly, is this: how do the persistent social stereotypes surrounding rape and rape victims find their way into legal systems that were expressly designed to exclude them — and what can we do, through law, to stop them?

* https://www.bbc.com/news/uk-48095118; https://www.nbcnews.com/specials/sex-assault-convictions/

The Problem of Rape Mythology

Rape myths are false beliefs and attitudes rooted in cultural stereotypes about sexual assault, rape victims, and perpetrators. They are not fringe views. They are deeply embedded in legal doctrine, in judicial reasoning, and in the evidentiary rules that govern what a judge and jury hear. Two myths have proven especially durable. The first is that a woman who has been sexually active in the past is more likely to have consented to the charged sexual act. The second is that a sexually active woman is less credible and less worthy of belief. Together, these myths operate as what one scholar has called “the engine of rape culture.”^[1] They do not simply reflect cultural attitudes — they shape legal outcomes. Studies across multiple jurisdictions show that jurors who endorse rape myths are more likely to blame the victim and less likely to convict. Judges can bring the same cultural assumptions into their courtrooms, and prosecutors into their charging decisions.

The consequences are visible in the data. In the United States, approximately seventy-five percent of rapes and sexual assaults go unreported.^[2] Of every one thousand sexual assaults that do occur, only twenty-eight result in a felony conviction. In England and Wales, fewer than one in seventy reports results in a charge.^[3] In Canada, only five percent of sexual assaults are reported to police.^[4] Survivors who do come forward report being disbelieved, treated unfairly, and harmed by the process itself. The legal system, in many instances, compounds rather than addresses the original injury.

These attrition patterns are not simply a function of evidentiary difficulty; they reflect survivors' well-documented reluctance to engage with a system many perceive as unwelcoming or hostile. Research across jurisdictions identifies a consistent set of reasons survivors decline to report: fear of disbelief, fear of blame or judgment, distrust of the police and courts, fear that family or friends will learn what happened, and fear of the trial process itself.^[5] Even survivors who report often withdraw before their case reaches a conclusion; one major UK study found that fear of not being believed and fear of the criminal justice system itself were key factors driving these early withdrawals, and that both police officers and survivors identified fear of testifying in court as a further deterrent to seeing a case through.^[6] Similar patterns have been documented in Canada, where survivors most frequently cite fear of disbelief, shame or embarrassment, and lack of family support as reasons for not reporting sexual violence to police.^[7] Notably, this lack of confidence persists even among survivors who do report: in a series of Canadian studies, roughly two-thirds of participants—whether or not their case ultimately went to trial—reported that they were not confident in the police, the court process, or the criminal justice system in general.^[8] These are not incidental features of survivors' experience—they are a direct consequence of the same rape mythology my work examines, operating not only inside the courtroom but at every point a survivor might otherwise come forward.

These outcomes are not accidental. They are, in significant part, the product of mythology operating inside the legal system—in charging decisions, in evidentiary rulings, in the questions asked of complainants in the courtroom. The appropriate response is not simply to acknowledge that bias exists. It is to confront it directly through law.

The Rape Shield Law and Its Limits

Legal systems have responded to rape mythology in a number of ways over the past half century — through statutory reform of sexual assault offenses, through the development of consent-based legal standards, and through evidentiary rules designed to limit what juries hear. One significant effort on the evidentiary side was the rape shield law. Beginning in the 1970s, a number of common law jurisdictions, including the United States, England and Wales, and Canada, enacted legislation limiting the admissibility of a complainant's prior sexual history at trial. These laws were a direct response to mythology. Their purpose was to prohibit the evidence that activates the twin myths — to stop defendants from introducing a complainant’s sexual past as evidence of consent or as grounds to impugn her credibility. The theory was that excluding this evidence would encourage reporting, produce fairer verdicts, and lessen victim trauma during trial.

Nearly fifty years later, the theory remains only partially realized. My article “The Persistence of Rape Mythology,” recently published in the Syracuse Law Review,^[9] examines why — and focuses on a particular category of evidence that illustrates the problem with unusual clarity: sexual pattern evidence. This is evidence that a complainant has engaged in sexual behavior so similar to the defendant’s account of the charged encounter that it is offered to establish, by inference, that she consented. It is propensity reasoning in everything but name. It draws directly on the first twin myth: because she consented in this way before, she consented here. And yet courts in all three jurisdictions I examined have admitted it, sometimes in striking ways.

In the United States, the consent exception to rape shield laws typically grant trial courts broad discretion over admissibility of sexual behavior evidence. That discretion has not always been exercised in ways consistent with the rule’s purpose. In one federal habeas case, a circuit court panel declared that evidence of a complainant’s prior group sexual activity with individuals other than the defendants was not merely relevant but “indispensable” to the consent defense — a holding that the Chief Judge, in dissent, correctly identified as endorsing the entire rationale rape shield laws were enacted to combat. In England and Wales, the Youth Justice and Criminal Evidence Act 1999 explicitly permits similarity evidence, and appellate courts have interpreted that provision expansively — allowing prior sexual conduct with third parties, without temporal limitation, to be admitted as evidence of consent. A conviction involving a professional footballer was overturned on the strength of testimony about the complainant’s prior sexual behavior with other men.^[10] The Court of Appeal reached that result while acknowledging, in the same opinion, the importance of protecting complainants from intrusive questioning about their sexual histories.

* https://www.theguardian.com/football/2016/oct/14/footballer-ched-evans-cleared-of-in-retrial

Canada offers the most instructive contrast. After its Supreme Court struck down an earlier rape shield statute on constitutional grounds, Parliament responded not by simply restoring judicial discretion but by building a structure around it. The current Canadian statute explicitly names the twin myths in the body of the law. The law works in two steps. First, the judge must ask whether the evidence is being offered to support either of two prohibited inferences: that because the complainant consented on a prior occasion, she must have consented here too, or that her prior sexual history makes her less worthy of belief—the very inferences rape shield laws exist to block. If the evidence survives that threshold, the judge must then weigh a further set of factors before admitting it, including the need to remove discriminatory bias from the fact-finding process and the importance of encouraging survivors to report. Crucially, the judge must then put those reasons in writing, making explicit the reasoning that, in other jurisdictions, often remains implicit and unexamined. This framework does not eliminate the problem—Canadian courts have still admitted sexual pattern evidence for prohibited purposes—but it does something the American and British rules do not: it names what it is fighting. It acknowledges that judicial discretion, exercised without guardrails, is one of the mechanisms by which mythology re-enters the courtroom.

The lesson I draw from this comparative analysis is that reform efforts fail when they prohibit evidence without confronting the reasoning that makes that evidence seem relevant in the first place. As long as the underlying myths go unnamed and unaddressed within the legal rule itself, they will continue to shape how courts exercise discretion. I have proposed amending the United States’ federal rape shield law along Canadian lines — to name the prohibited inferences explicitly in the rule’s text, require courts to address specified factors in admissibility determinations, strengthen procedural protections for complainants at admissibility hearings, and make clear that similarity evidence furthers the very myths the rule was designed to address.

Consent-Based Law and the Forum in Seoul

My work on rape shield laws and mythology led, earlier this year, to an invitation that took the research in a direction I had not fully anticipated: a forum at the Korean National Assembly focused on consent-based sexual assault law reform. I was asked to present on the American experience with consent-based statutes—what they require, how they operate, and what fifty years of jurisprudence has shown. The invitation was a reminder that the questions animating my research are not provincial ones.

Rape shield laws and consent-based statutes address different dimensions of an underlying problem. Both address, from different angles, the ways in which legal doctrine has failed victims of sexual violence—though they operate at different levels of the legal system. Rape shield laws are evidentiary rules: they limit what a jury hears at trial, specifically by restricting the use of a complainant’s sexual history to support inferences about consent or credibility. Consent-based statutes operate at the level of the substantive offense, redefining what must be proven to establish that a crime occurred. What they share is a common origin in the recognition that culturally embedded mythology about rape and rape victims had distorted legal outcomes—one by shaping what evidence reached the factfinder, the other by shaping the legal standard the factfinder was asked to apply. Force-based sexual assault law, as a model, places the victim’s resistance at the center of the legal inquiry. The infamous “utmost resistance” standard, once the law of multiple American states, required a woman to resist her attacker to the last in order for the act to qualify as rape. Courts reversed convictions when survivors had not resisted sufficiently. Although American jurisdictions have generally moved away from a resistance requirement—most states now provide that resistance is not required and include separate provisions addressing incapacitated victims—the force element that remains in many statutes can animate the same underlying mythology in practice. Requiring proof of force directs the factfinder's attention toward the victim's physical experience and response, implicitly inviting evaluation of whether she resisted sufficiently, even when the law no longer formally demands it. The spectre of resistance lingers in force-based frameworks in ways that consent-based statutes, focused on the presence or absence of agreement, are better positioned to avoid.

The strict consent-based standard asks a different and, I would argue, more legally coherent question: was there agreement? What distinguishes strict consent-based statutes is not simply that they center agreement, but that they do not require proof of force or threat of force as an element of the base offense. Under these statutes, the prosecution must prove that the defendant engaged in sexual acts with the victim without the victim’s consent, where consent is defined as a voluntary agreement. Many of these jurisdictions provide multiple means of committing the offense—including through force, coercion, or threat—but the absence of the victim’s consent, standing alone, may be sufficient. This is a meaningful structural distinction: it reorients the legal inquiry away from what the defendant did to the victim’s body and toward whether the victim agreed to the sexual activity. (It is worth noting that consent definitions vary across these jurisdictions—some require an affirmative, unambiguous, and voluntary agreement, while others define consent more simply as a voluntary agreement—but what unites them is that proof of force is not required as an element of the base offense.)

The American jurisdictions that have adopted this standard for penetration offenses include, for example, Wisconsin, Vermont, New Jersey, Florida, and most recently Maryland in 2024, and have now generated more than a century and a half of combined jurisprudence. No state that has adopted the standard has retreated from it. The objections raised at the time of adoption—that it would shift the burden of proof, criminalize ordinary sexual encounters, produce unjust convictions in ambiguous cases—have not materialized. The burden of proof remains, by operation of law, with the prosecution in every strict consent state.

The Korean reform discussion is animated by similar concerns. Advocates in Korea, along with some members of the National Assembly, are working to move away from a force-based model toward one that centers the victim’s agency and agreement. My conversations at the forum, and subsequently with researchers and activists, reinforced something that comparative legal scholarship makes visible, but that domestic research can obscure: the myths driving these legal failures are not unique to any jurisdiction. The same cultural stereotypes that produced the utmost resistance requirement in nineteenth-century Wisconsin appear, in different doctrinal clothing, in British appellate decisions, in Canadian and United States trial courts, and in Korean legislative debates. Reform efforts on opposite sides of the world are confronting similar fundamental challenges.

The Persistence of the Work

That challenge—how to change a legal rule when culturally embedded mythology can continue to shape the decisions of those who apply it — is a common thread running through my research. Rape shield laws represented a genuine effort to interrupt the flow of mythological thinking into the courtroom. They have not fully succeeded, but they have taught us something important: procedural reform, while necessary, is not sufficient on its own. The myths must be named within the legal rules themselves—not because naming them eliminates the problem, but because leaving them unnamed allows them to operate invisibly. More robust procedural mechanisms, explicit guidance on the prohibited inferences, and stronger protections for complainants in admissibility hearings are among the tools that may help close the gap between the stated purpose of these laws and their real-world application.

These are not abstract procedural reforms. They matter because deeply embedded cultural mythology can distort outcomes even in a system where participants act in good faith. That is, in many respects, the harder problem: bias that operates below the surface of conscious decision-making is more difficult to address than bias that is openly acknowledged. My experience as a prosecutor, and my subsequent research, both point toward the same conclusion—that addressing these outcomes requires attending carefully to the rules and structures that shape the process.

The forum in Seoul, and the conversations it made possible, affirmed that this is work being done—in different languages, under different legal frameworks, from different starting points—by people across the world who share the conviction that legal systems can be made fairer, and that confronting mythology directly is a necessary part of how that happens.