Rape Shield and Crawford
The question was straightforward: "Do you think that Crawford renders the rape shield statute unconstitutional?" I hadn't given it much thought, so I gave the first answer that came to mind: "No."
It would have been better if I'd given the second answer that came to mind. It would have been much better if this had occurred in an idle conversation over lunch or at the office, instead of in the midst of an oral argument before the Court of Appeals.
The case involved every defense lawyer's favorite, child rape, with a 7-year-old boy claiming that his 17-year-old foster brother had anally raped him on two occasions. As in many such cases, there was no corroborating evidence; in fact, the boy didn't even make the allegations until over a year later. His testimony, though, was damning, at least in one regard: he testified that he observed "white stuff" coming out of the defendant's penis. It's pretty hard to see how the child could have come up with if it hadn't actually happened.
Except in this case there was a pretty good explanation for the alternate source of his knowledge: before he moved into the foster home, he'd been exposed to a fair amount of pornography, and his mother's boyfriend had sexually abused him. The defense lawyer raised those points in opening statement, but when it came time to cross-examine the child, the trial judge held that the evidence of exposure to pornography and prior sex abuse was barred by the rape shield statute.
That's clearly wrong. There's a fair amount of case law holding that the interests to be protected by the rape shield statute have to be balanced against the defendant's interest in confronting witnesses and presenting a defense. The Ohio Supreme Court recognized that 30 years ago in State v. Gardner, drawing on several US Supreme Court decisions. The court found that the defendant's rights didn't outweigh the interests of the statute in Gardner, but came to an opposite conclusion in 1986 in State v. Williams. Needless to say, there's a lot of more recent appellate cases on the issue. In fact, a number of other jurisdictions have essentially established a "child rape" exception to their rape shield statutes: if the evidence of prior sexual activity might explain how a child came to acquire sexual knowledge pertinent to the case, it comes in.
The trial judge in my case obviously erred in not conducting a balancing test. What's more, the evidence regarding the child's exposure to pornography wasn't even subject to the rape shield law: watching pornography is not engaging sexual activity. <Your punchline here.> I wasn't home free, because the court could still engage in its own balancing test, or, as the 10th District did in State v. NDC, make a limited remand to the trial court for the purpose of conducting the test. I was somewhat hampered in that I didn't have a great record; the trial judge had been so adamant in his ruling that the defense attorney didn't do much proffering on what the evidence of the pornography and prior abuse really was. As I explained to the court, though, one can't really be expected to proffer what would have been produced through cross-examination, and the defense's right to do that was substantially curtailed by the trial judge's ruling.
And that's when the one judge hit me with the question about Crawford and the rape shield law. The thought had never really crossed my mind, probably because it wasn't an argument I needed to make. Even if I'd thought about it, I'm not sure I would have made it, since I generally take the path of least resistance in my appellate work: why should I try to convince the court to declare the rape shield statute unconstitutional when I can win the case by showing that the trial court clearly erred in not balancing the statute against my client's constitutional rights?
But the judge had a point, which I acknowledged. After all, I told the panel, if you look at Justice Scalia's opinions in Crawford and the subsequent cases, it's heavy on originalism, i.e., what the understanding of the right of confrontation was at the time the Constitution was written. That understanding didn't include anything about rape shield statutes; the latter didn't exist until about 30 years ago.
So is there an argument that the Court's heightened regard for the right of confrontation dooms rape shield statutes? You can make arguments on both sides. No court would hold that Crawford means the defense has an unfettered right to conduct cross-examination in any manner it wishes; objections can still be sustained on grounds of relevancy or other evidentiary problems, and trial judges still retain the right to monitor cross-examination so that it's not overly repetitive, etc.
On the other hand, Scalia's decision two years ago in Giles v. California (discussed here) makes clear that wholesale exceptions to confrontation, even where done in the name of "fairness," are going to be a hard sell, especially if they're of recent vintage. Giles dealt with the concept of "forfeiture by wrongdoing" -- the defendant forfeits his right to object to lack of confrontation because he's the reason the witness is unavailable. Although the doctrine is centuries old, California had modified it by eliminating the requirement that the defendant have committed the crime against the witness for the purpose of preventing the witness from testifying. The Court tossed that, with language which provokes some thought about the rape shield statute: "We decline to approve an exception to the Confrontation Clause unheard of at the time of the founding or for 200 years thereafter."
I really don't see it happening. It's going to take a US Supreme Court decision to do that, and liberals like Ginsberg, Stevens, and Souter have been reliable votes for Scalia's position. Ginsberg, Stevens and Souter's replacement, Sotomayor, may well jump ship if it means tossing out the rape shield statutes.
But it's an argument you might want to keep in mind.