New Cases on the Rape Shield Law

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The Court of Appeals decided two rape shield cases this month — State v. Cook and State v. Adu — and Cook, in particular, is a good illustration of how protective our courts are of the privacy of alleged victims of sexual assaults.

North Carolina’s rape shield law, N.C. R. Evid. 412, prohibits the introduction of any evidence about “sexual behavior of the complainant” other than the sexual acts at issue in the case unless the evidence falls within one of four exceptions.  By far the most commonly invoked exceptions are (1) for previous sexual contact between the complainant and the defendant, and (2) for “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 latter exception, by its terms, seems potentially broad enough to swallow the rule, but in practice it comes up most frequently when the defendant wants to introduce an alternate explanation for physical evidence of a sexual assault.

For example, in Cook, a stepfather was charged with raping his stepdaughter, and a physician testified for the state that the complainant’s hymen had scarring consistent with past penetration.  The defendant sought to introduce evidence that the complainant had sex with a boyfriend as an alternate explanation for the scarring.  Plainly, that evidence falls within the scope of the rape shield rule, but the defendant argued that it also fell within the scope of the second exception.

The trial court didn’t admit the evidence, and the Court of Appeals affirmed, in a case that has at least two important lessons for counsel in sexual assault cases.  First, Rule 412 requires the proponent of other-sexual-behavior evidence to make an in camera offer of proof to establish the admissibility of the evidence.  In Cook, defense counsel made an offer of proof by examining the complainant, who denied having had sex with her boyfriend, and by proffering that the boyfriend would testify otherwise.  The Court of Appeals ruled that this was not a sufficient offer of proof: the complainant denied having had sex, and counsel’s mere proffer of the boyfriend’s testimony was insufficient.  Thus, defense counsel should be sure to call their witnesses at the in camera hearing, and prosecutors should pounce if they do not.  Second, the Court of Appeals held that even if the proffer were adequate, the evidence would have been inadmissible because the boyfriend would have testified that he and the complainant had sex a week before the state’s doctor examined the complainant, but the doctor testified that the scarring was at least a month old.  The lesson here is to scrutinize the evidence at issue, since evidence that seems on its face to fall within the exception may not be relevant on closer examination.

The court’s reasoning on the Rule 412 issue is pretty unimpeachable, but there was another issue in Cook that may be a little less clear-cut.  The trial court excluded evidence that the complainant had falsely accused someone else of raping her.  This isn’t a Rule 412 issue, since making accusations isn’t sexual behavior.  Rather, it’s a Rule 401/403 balancing issue, and the Court of Appeals agreed with the trial judge that the  false accusations were sufficiently different in content and context that admitting evidence about them would be more prejudicial than probative.  Since this post is already too long, I’ll spare you the details, but I’m not sure the court’s reasoning on this point is as strong, and I wonder whether the result would have been different in a closer case.  If I were a juror, I’d think evidence that the complainant has a history of making false accusations would be pretty probative.  Maybe others feel differently — if so, post a comment.

3 comments on “New Cases on the Rape Shield Law

  1. Nice analysis of the 412 issue, but don’t forget that on the 401/403 issue, the Court doesn’t replace its judgment with that of the trial court and determine whether or not the trial court’s application of balancing test was *correct* — rather, on appeal, the Court only decides whether or not the trial court’s ruling was an abuse of discretion. A big difference, and one which your post ignores to the detriment of an otherwise excellent analysis.

    • You’re right that review of 401/403 rulings is for abuse of discretion, and the deferential standard of review may have played a role in the court’s analysis, though the tone of the opinion is that the trial court was right, not maybe-wrong-but-not-unreasonable. And the court emphasized arguments that strike me as a bit far-fetched, including the idea that the jury might be confused about whether the victim’s consensual sex with her boyfriend — a year after the events giving rise to the charges against the defendant — could have explained the damage to the victim’s hymen found by the doctor in the immediate aftermath of the defendant’s abuse of the victim. Still, you make a fair point, and the decision was a unanimous one, suggesting that my reservations about the reasoning of the case aren’t widely shared.

  2. Heh — don’t EVER think that a unanimous decision at the Court of Appeals suggests that any reservations you might have about the Court’s holding aren’t widely shared. 🙂

    As for the “tone” of that portion of the opinion, I think some of the language you’re referring to came from the parentheticals at the end of section III, not from the actual discussion of the Court. In any event, from my reading, the Court seemed at pains to stress NOT that they believed that the trial court was correct but that “[w]e do not believe that the trial court’s conclusion was manifestly unreasonable.” Big difference.

    Finally, never underestimate the ability of a jury to be confused by the dates of various events — if they can get mixed up, they probably will. Which I suspect that a trial judge like Narley Cashwell knows as well as anyone.

    And thanks for the great work you do here. This is a much-needed addition to NC’s blogosphere!

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