Lithwick seems to believe in the utility of the rape shield laws:
Who cares whether a woman had sex four times that night? No assailant had the right to force a fifth.
But thinks that there are problems when it comes to acquaintance rape cases:
But the problem in acquaintance rape cases - centered as they are on nuanced questions about the accuser's consent and the defendant's understanding of that consent - is that the legal inquiry does come down to whether she asked for it...And all the evidence of her sexual behavior - in this case the physical evidence implicating the accuser's other encounters that week - thus becomes highly relevant.
That isn't a problem with the legal system and isn't really missing the point. Rather, consent definitions vary from jurisdiction. From what I have seen it has never been a question of her "asking for it," but rather if she said no to it. The evidence of her sexual behavior has nothing to do with consent statutes. Rather it usually has more to do with whether there was a forcible or violent encounter. It isn't conclusive proof. It is simply a piece of evidence that the jury can use for whatever purpose. This is why the rape shield law exists in evidence law.
Lithwick then states:
Either the defendant's legal presumption of innocence is flipped on its head, since rape shield laws unambiguously deny him access to potentially exculpatory evidence, or - as a practical matter - the woman's sexual history goes on trial regardless, permitting humiliating public scrutiny often likened to a second rape.
I'm afraid that I don't actually understand what she's getting at. The rape shield laws allow a defendant to bring forward evidence of previous sexual behavior after a rape shield hearing. This isn't that big of a hurdle. It is done outside the presence of the jury with expert testimony. Then the judge will decide if admitting the evidence will be useful to the jury or not.
This isn't a problem with the legal system. Rather it is the way the rules of evidence work. Plaintiff's and Defendant's do not get to bring everything they want to be evidence. Hearsay is excluded, prejudicial testimony is curtailed, motions in limine restrict the words that can be used by lawyers, etc. This so called "problem" is actually a benefit of the US legal systems that allow trials to be conducted more fairly for both sides.
