Back in April 2017, I blogged about State v. Jacobs, ___ N.C. App. ___, 798 S.E.2d 532 (March 12, 2017) here. That post focused on the preservation aspect of the case—the defendant failed to preserve a constitutional challenge to the trial court’s exclusion of evidence in a sexual assault prosecution. The alleged victim, the defendant’s minor daughter, had two sexually-transmitted diseases (“STDs”) that the defendant did not. The defendant wished to present expert testimony about the different test results. The trial court excluded the evidence under Rule 412, the rape shield rule, and the Court of Appeals unanimously affirmed. Because no constitutional challenge to the ruling was made at trial, the Court of Appeals refused to consider the argument that the exclusion of the STD evidence violated the defendant’s right to present a defense. In a 6 to 1 opinion, the N.C. Supreme Court reversed the Court of Appeals on the Rule 412 issue early last month, granting the defendant a new trial. State v. Jacobs, ___ N.C. ___, 811 S.E.2d 579 (April 6, 2018). Today’s post summarizes the Supreme Court decision, which adds a new wrinkle to the application of Rule 412 in rape and sexual offense cases.Facts
The defendant’s daughter claimed that her father had been having unprotected sex with her on a regular basis (two to three times a week) for three years beginning when she was 10 or 11 years old. Once this was reported, she was tested for sexually-transmitted diseases, and the testing revealed two such infections. Within three days of his arrest, the defendant was also tested pursuant to a search warrant, which showed that he did not have either infection. The defense obtained an expert witness to interpret the different test results. The expert, a specialist in infectious diseases, opined that “it is not likely that the [complainant] and defendant engaged in unprotected sexual activity over a long period of time without transmitting either [of the infections], or both, to the defendant.” State v. Jacobs, 811 S.E.2d at 582. After conducting a pretrial hearing, the trial court excluded the proposed evidence under the rape shield rule. The jury hung on first-degree rape of a child but convicted the defendant of first-degree sexual offense, and the trial court sentenced the defendant to a minimum active term of 420 months imprisonment (35 years).
The Court of Appeals Decision
The defendant’s argument at the trial court and in the Court of Appeals was that the STD evidence and expert’s opinion were relevant to show that the acts charged were not committed by the defendant and that Rule 412 did not bar the evidence. Rule 412 provides that the sexual behavior of a victim is irrelevant in a rape or sexual offense prosecution unless offered for one of the enumerated exceptions in the rule. Here, the relevant exception was 412(b)(2): evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant.
The Court of Appeals first determined that Rule 412 applied to the defendant’s proposed evidence. “The presence of a STD is indicative of prior sexual behavior, and thus, Rule 412 is implicated.” Jacobs, 798 S.E.2d at 535. Turning to the question of whether the evidence fell within an exception to the rule, the court considered State v. Ollis, 318 N.C. 348 (1986), a case cited by the defendant in support of his argument. In Ollis, the state Supreme Court considered the applicability of subsection (b)(2) of Rule 412 to evidence that the alleged victim had been sexually abused by another person. Medical evidence presented at trial supported that the child had been sexually abused, and the defendant wanted to introduce evidence of a sexual assault by another person to offer an alternative explanation of the cause of the medical findings. The trial court in Ollis excluded the evidence of the other assault and the defendant was convicted. The Supreme Court reversed. “We agree with the defendant that the evidence should have been admitted, as it would have provided an alternate explanation for the medical evidence . . . and falls within exception (b)(2) of Rule 412.” Ollis at 376.
The Court of Appeals found Ollis distinguishable from the facts in Jacobs. According to the Court of Appeals, the medical evidence offered by the defendant in Jacobs “offered no such alternative explanation or specific act to prove that any sexual act committed was by someone other than him.” State v. Jacobs, 798 S.E.2d at 536. The Court stated that the defendant’s STD evidence was mere “speculation” and insinuation that the daughter had sex with someone else. The evidence was therefore irrelevant and properly excluded by Rule 412. In the words of the Court: “The evidence the defendant seeks to admit is the very type of evidence Rule 412 was designed to keep from the jury’s consideration.” Id.
The Supreme Court decision
The Supreme Court came to the opposite conclusion. “The purpose of [defendant’s STD] evidence appears to be precisely what defendant stated it to be: to support his claim that he did not commit the criminal acts for which he was charged. That purpose aligns completely with the exception carved out in Rule 412(b)(2)”. Jacobs, 811 S.E.2d at 583-84. The Supreme Court agreed with the Court of Appeals that the defendant’s evidence constituted evidence of sexual behavior of the complainant within the meaning of Rule 412, but it found that the (b)(2) exception applied. “The proposed expert’s conclusions regarding the presence of STDs in the victim and the absence of those same STDs in the defendant affirmatively permit an inference that the defendant did not commit the crime charged.” Id. at 583.
The Supreme Court found that Ollis did not determine the outcome in this case. There, the defendant’s evidence regarding a prior sexual assault by another on the victim should have been admitted to rebut the State’s medical evidence, and the State’s evidence was “misleading” without such evidence being allowed. That was not exactly the situation in Jacobs—it was the defendant’s affirmative medical evidence that “directly supports an inference that the act or acts charged were not committed by the defendant.” Id. Continuing, the Supreme Court stated: “Although Ollis does describe one set of circumstances in which this exception applies, that decision did not describe the only set of circumstances in which this exception applies.” Id. The court therefore vacated the conviction and ordered a new trial. Because a new trial was ordered on the Rule 412 issue, the court did not consider the constitutional argument that the Court of Appeals found had been waived.
This was an issue of first impression for North Carolina. Before Jacobs, the closest direction we had from state courts on Rule 412 and STD evidence was an unpublished decision State v. McCray, 186 N.C. App. 306 (2007) (unpublished). In that second-degree rape case, the victim’s testimony at trial indicated that she had been involved in prostitution at times (although not with the defendant) and raised a possibility that she might have had an STD at the time of the rape. The defendant wanted to question the victim about her STD to undercut her testimony that, although she sometimes engaged in sex for money, she was selective in choosing her customers. This fact, the defendant argued, made it more likely that she consented to sex with him and was proper impeachment evidence. The trial court prohibited the defense from questioning the victim about any STDs she might have had as irrelevant and prejudicial, and the defendant was convicted. The Court of Appeals affirmed, finding that the proposed STD evidence was not probative of the issue of consent: “The medical records did not contribute anything to the defendant’s case: they do not contradict anything testified to by the victim, nor did they suggest anything else that could be used to impeach her.” McCray at 5-6 (slip op.).
Does Jacobs mean that the reasoning of McCray is in doubt? I don’t think so. The McCray court concluded that the STD evidence just wasn’t relevant to the facts of the case—it wasn’t being used for any of the enumerated exceptions in Rule 412 and had little, if any, probative value regarding the victim’s consent or her truthfulness. By contrast, the defendant in Jacobs claimed the alleged assault never happened at all, and the evidence showed that the source of the infections (and by implication, the underlying sexual acts) was someone else. Context matters—the potential relevance and probative value of the proposed Rule 412 evidence will depend on what the other evidence and defenses are in the case. Jacobs signals that sometimes the STD status of the defendant or alleged victim will be relevant. When that is the situation, Rule 412 is not so broad as to mandate its exclusion.
Defenders, remember that under the terms of Rule 412(d)(3), there must be a pretrial determination of the admissibility of any evidence involving the sexual history of a witness before questioning the witness. If the trial court excludes the evidence, an offer of proof should be made to protect the record if the defendant is convicted. And, as I emphasized in the original Jacobs blog post, be sure to include due process and the right to present a defense under the federal and state constitutions as a basis for the evidence, in addition to any arguments under the rules of evidence.
If you’re interested in more information about Rule 412, Shea Denning did a post on recent cases in this area back in April of 2017, here; and Jeff Welty has a bulletin available here that remains a useful resource in this sometimes-tricky area.