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Another look at rape shield

Your client is charged with rape.  He wants to testify that it was consensual, and that the victim was actually a prostitute who enticed him to go to her apartment with an offer of sex, then claimed rape in order to get his money.  No, your client's not going to testify to that, says the trial court, because that's barred by the rape shield statute.

No it's not, said the 8th District last week in State v. Ciacchi.

The victim's story was that she was walking home one day, saw Ciacchi, whom she knew as "Tony," waiting at a bus stop, and invited him to her apartment for lunch because it was raining.  When they arrive, she hung up her coat and returned to the living room only to find him undressed and masturbating.  He grabbed her and tried to have sex with her, but she was able to get away and ran out the door screaming for a neighbor to call 911.  The neighbor did, the police arrived, and found Ciacchi down the street a short distance away.  When asked what happened on "Cranford Avenue" -- the victim's address -- Ciacchi denied knowing where the street was.  The police testified that he had been drinking, but Ciacchi claimed he smelled of alcohol because he worked at a bar that morning.

Ciacchi acknowledged meeting the victim on the street, but from there the stories dramatically diverged.  According to him, he didn't know the victim, but she nonetheless approached him and offered to give him oral sex for $20.  They went to her apartment, where she asked him to remove his pants, then excused herself from the room.  She ran back into the room screaming rape, then ran out the door.  Ciacchi picked up his pants and shoes and left.

The trial court, though, barred Ciacchi from testifying in detail as to the conversations out on the street, or about what happened in the apartment.  This formed the basis of Ciacchi's first argument in the court of appeals, and the only one the court addressed.

The state's first defense of the trial court's rulings was that the statements were inadmissible hearsay.  That was an easy one to dispose of; as the court noted, these statements weren't hearsay at all, but 

"verbal acts" that were offered to support the defense theory that the victim engaged him through an act of prostitution and to prove consent.  Acts may be admitted to explain an actor's conduct in reaction to the statements, to show the effect on the hearer, and to show the mental state of the declarant.

The second defense looked more promising:  the statements were barred by the rape shield statute.  These statutes came into vogue in the mid-70's, in response to the usual defense in a rape case of "putting the victim on trial" by questioning her about her past sexual activity. 

But there are competing interests.  As I discussed in a post last year, the rape shield isn't an absolute:  the state's interest in protecting the victim from disparagement has to be balanced against the defendant's 6th Amendment right to confront witnesses and present a defense.   The Ciacchi court decides that the balance weighed in favor of allowing the evidence. 

The court's basis for doing so is a narrow one.  The two leading Ohio cases on this are State v. Gardner and both of which also involved allegations the victim was a prostitute.  In Gardner, the court had upheld the exclusion of general testimony that the victim was a prostitute, finding that the prejudicial and inflammatory nature of the excluded testimony outweighed what little, if any, probative value it may have had." 

In Williams, though, the victim had testified on direct that she had never had sex with the defendant prior to the date in question, and furthermore "that she did not have sex with men because she was 'gay.'"  (Sign of the times:  note the court's use of quotation marks around "gay.")  Williams testified in a pretrial hearing that he'd had several previous sexual encounters with the victim, that she was a prostitute, and he was her pimp; he also proffered the testimony of another witness as to the victim's reputation in the community as a prostitute.   The court held the testimony should've been admitted, distinguishing Gardner on the basis that in the latter case the evidence went merely to the victim's credibility, while in Williams it was pertinent to the issue of consent.  The Ciacchi court cites another distinction:  in Gardner the court had noted that "there is no suggestion in the record that financial arrangements were entered into for sexual activities in this instance."  Obviously, that wasn't the case in Ciacchi.

It's quite possible that Ciacchi will be read narrowly, and confined to its facts:  that the defense can offer evidence that the victim was a prostitute if it can show that the sexual conduct at issue was based on "financial arrangements."  That's not necessarily a narrow construction, though; theoretically, it allows a defendant to bring in witnesses to testify that the victim was a prostitute simply by testifying that she offered him sex for money on that particular occasion.  And Ciacchi arguably goes beyond Williams, where it was the prosecution which brought up the subject of prostitution and the victim's sexual proclivities during her direct examination. 

At the very least, Ciacchi serves as a reminder that the rape shield statute is not as impenetrable as some might think. 

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