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Rape shield and the right of confrontation

You're representing a defendant in a child rape case.  The eight-year-old victim has testified in graphic detail as to exactly what your client did.  You know the jury's sitting there thinking that the kid has to be telling the truth, otherwise how would she know this stuff?  You know that the child has an alternative source for this knowledge:  she was molested by someone else a year or so earlier.  But when you attempt to introduce the evidence of that, the judge refuses, because it doesn't fall within one of the exclusions in the rape shield statute, RC 2907.02(D)

That's the wrong answer, as the 6th District's decision in State v. Ector last week indicates.

Most states enacted rape shield statutes in the 1970's in reaction to the tendency of rape cases to result in the trial of the victim, rather than the accused.  While the goal of preventing the the victim from having to chronicle her sexual history was admirable, the problem was that doing so necessarily impacted the defendant's 6th Amendment rights of confrontation and to present a defense.  The net result, as Ector points out, is that a trial court can't simply exclude evidence because it's not permitted by the rape shield statute; the court must balance the interests protected by the statute against the defendant's constitutional rights.

Ector isn't very instructive on how that's done, primarily because we're left in the dark about the evidence that the defendant, who  was charged with raping his 13-year-old niece, was seeking to introduce.  The excluded evidence concerned her visit to a clinic a week before she disclosed the alleged molestation, but other than a cryptic reference that the clinic documents "arguably... show that [the victim] had a motive to divert attention from her own acts to that of another," we're left to guess what was really in there. 

Even if the court had been more forthcoming, it may not have done much good.  As with any "balancing" test, the cases are very fact-specific, and it's difficult to draw any particular lessons from them.  Some attempt to draw a distinction between evidence which is probative from that which merely goes to "impeach credibility," but that's tricky, as indicated by State v. Gardner and State v. Williams, the two Supreme Court decisions relied on in Ector.  In Gardner, the court had excluded evidence that the victim was a prostitute, while in Williams, it allowed evidence that the victim had sex with other men:  she'd testified that she wouldn't have consented to sex with the defendant because she was gay, and the excluded evidence, the court held, would thus have been probative of the issue of consent.

There's logic to that, but some problems, too; especially in the date rape context, it's not difficult to envision an argument that prior sexual liaisons of the victim, in similar situations to that in the case on trial, are probative on the consent issue.  The net effect of the cases is that the farther away you get from making a simple "she's a slut" argument, the more likely the evidence is going to be deemed admissible. 

One area where you can make a good argument that the rape shield statute should give way is the situation detailed in the first paragraph:  allegations of prior abuse in child rape cases.  In fact, a number of states have come close to creating an exception to their rape shield statutes for such evidence. 

It's not hard to see why:  the balancing test clearly winds up in favor of admission.  The interests in favor of exclusion go back to the original rationale for the adoption of rape shield statutes:  prevention of harassment and humiliation of the victim.  That's not a factor in child abuse cases; the jury isn't going to think less of little Sarah because she's been horribly abused by someone other than the defendant.  On the other hand, the probative value of that evidence is substantial; as the 10th District acknowledged in State v. N.D.C., "the average juror would wonder how could a child of tender years understand any of this behavior unless it really happened." 

That's not to suggest that avoiding the impact of the rape shield statute is a slam dunk in child molestation cases.  In N.D.C., , instead of reversing, the court took the unusual step of remanding the case back to the lower court to conduct the balancing test it should have done in the first place, then affirmed when the lower court decided that -- surprise surprise -- it was right to have excluded the evidence in the first place.

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