New York University Review of Law & Social Change
N.Y.U. Rev. L. & Soc. Change
For the past forty years, North Carolina’s rape-shield legislation has served as a laboratory of experimentation. Like the rape-shield legislation of every state, it generally prevents the admission of complaining witnesses’ past sexual history in sexual assault prosecutions. However, North Carolina’s rape-shield rule contains a unique exception not found elsewhere in the country. The exception, which we label the “fantasy exception,” permits the admission of a complaining witness’s past sexual behavior when it is offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the charged assault.
This Article is the first to rigorously scrutinize the fantasy exception. We conclude that the North Carolina experiment has failed. The fantasy exception’s potential policy justifications range from misogynistic at worst to unsound at best. In its application, the fantasy exception fails to confer any positive protections to criminal defendants yet carries the potential to confuse and intimidate sexual assault victims. In such a sensitive area of the law that especially needs clear and logical rules, the fantasy exception only harms; it never helps. In short, other jurisdictions should continue to avoid the fantasy exception, and North Carolina should remove it from its rape-shield legislation.