A Crack in the Armor?: How the Reforms to the New York State Human Rights Law May Expose Weaknesses in Civil Rape Shield Laws

By Candace Mashel

Civil rape shield laws exist to protect victims of sexual misconduct from unwarranted intrusions into their private lives as they litigate their claims. Gaps in current federal and New York State civil rape shield laws, however, mean that victims of sexual misconduct still experience significant privacy intrusions during litigation. These intrusions may have the effect of deterring victims from coming forward. Part of the reason that these gaps exist, however, is to ensure that defendants are given a fair opportunity to assert defenses.

In 2019, New York revised the New York State Human Rights Law to make it easier for victims to bring sexual harassment claims. The revisions included the elimination of two commonly asserted defenses to sexual harassment claims. The defenses that survived the revisions, however, may force defendants to probe into plaintiffs’ private sexual histories more than was necessary when more defenses were available. The reforms to the New York State Human Rights Law, therefore, may have the unintended consequence of increasing the use of tactics that deter victims from coming forward.

This Note argues that New York should enact a civil rape shield statute to better protect the privacy of sexual harassment plaintiffs, without further limiting the defenses available to sexual harassment defendants, and proposes the appropriate mechanisms for doing so.