Thursday, September 18, 2008
It's My Space. That's Why They Call It MySpace, Take 3: North Carolina Court Makes Erroneous MySpace Ruling In Rape Shield Case
I've already had the opportunity to address two opinions dealing with an issue that I think might divide courts in the near future: Is evidence from a person's MySpace page admissible? In both of those opinions, the courts found the MySpace evidence to be inadmissible, with one finding that it constituted inadmissible hearsay and the other concluding that it violated Michigan Rule of Evidence 403.
Well, on Tuesday, in In re K.W., 2008 WL 4201072 (N.C.App. 2008), the Court of Appeals of North Carolina became, as far as I am aware, the first court to find that MySpace evidence should have been admissible at trial, although I disagree with its conclusion on different grounds. In K.W., K.W., a 13 year-old minor, notified her school counselor that she was being raped by her father, A.W. The counselor thereafter called the police, and K.W. provided a statement in which she accused her father of raping her multiple times. Mecklenburg County Youth and Family Services ("YFS") then became involved with the case and convinced A.W. to signed a Safety Assessment Plan, under which he agreed to cease all contact with his daughter.
K.W., however, stated that her father moved back into the family home approximately one week after the rape allegation, which was a violation of the Safety Assessment Plan. K.W. was subsequently examined by a physician, who found that K.W. had a hymeneal transection and that her physical condition was consistent with child sexual abuse. Consequently, YFS filed a Juvenile Petition alleging K.W. to be an abused, neglected, and dependent juvenile and obtained an immediate Non-Secure Custody Order. Then, after a hearing, the trial court entered an Adjudicatory and Disposition Hearing Order, adjudicating K.W. abused, neglected, and dependent, prompting A.W.'s appeal
As part of his appeal, A.W. claimed, inter alia, that the trial court erred by precluding him from presenting evidence from K.W.'s MySpace page. According to the court,
The Myspace page contain[ed] suggestive photos of K.W. to which she caption[ed], "'[I] may not be a virgin but I still gotta innocent face.' "Also, she answer[ed] in the affirmative to the question "'had sex?' "During the in-camera questioning, K.W. testified that the website was hers, but that her friend filled in the answers.
A.W. claimed that this evidence was admissible for two purposes. The first purpose was to establish that someone else could have caused the hymeneal transection found by the examining physician. And, indeed, if this evidence established that K.W. engaged in other sexual acts at or around the same time as the alleged sexual abuse by her father, it could have been admissible under North Carolina Rule of Evidence 412(b)(2). This Rule, an exception to North Carolina's rape shield rule, allows for the admission of evidence of the sexual behavior of a complainant if it "[i]s 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 problem for A.W., however, was that the MySpace page made no reference to any specific instances of sexual behavior by K.W., let alone when they occurred.
The second purpose was to impeach A.W.'s testimony. You see, K.W. testified that she was a virgin before her father raped her and that, during the time her father was raping her, she did not have any boyfriends with whom she was intimate nor had she ever been on a date. The court rejected A.W.'s explanation that her friend filled in the answers on her MySpace page and found that the trial court should have deemed the page admissible to impeach her contradictory trial testimony. In so concluding, it relied upon a North Carolina case which pre-dated its rape shield rule and which allowed for the admission of an alleged rape victim's statements which contradicted her trial testimony. See State v. Younger, 295 S.E.2d 453, 456 (N.C. 1982). Nonetheless, the court found that the error was harmless and affirmed the trial court's ruling.
I disagree with the court's ruling, and I think that it erred by relying upon a pre-rape shield rule case. North Carolina's rape shield rule contains four exceptions, none of which allow for the admission of prior sexual behavior of an alleged victim for impeachment purposes. Instead, the exceptions allow for evidence of prior sexual behavior of an alleged victim when it is:
(1) evidence of sexual behavior between the complainant and the defendant; or
(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; or
(3) evidence of a pattern of sexual behavior so distinctive and so closely resembling the defendant's version of the alleged encounter with the complainant as to tend to prove that such complainant consented to the act or acts charged or behaved in such a manner as to lead the defendant reasonably to believe that the complainant consented; or
(4) evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.
Indeed, the Court of Appeals of North Carolina merely needed to look at its prior opinion in State v. Dorton to have seen that its ruling was erroneous. There, the court noted that:
" defendant contends the trial court improperly denied him the right to inquire into the victim's previous sexual activity for the purpose of attacking her credibility as a witness....In the instant case, defendant neither cites to nor argues the substance of any of the four exceptions. Rather, defendant asserts he 'simply wanted to attack [the victim's] credibility as a witness....' Defendant's arguments fail to bring the sought testimony within any of the four exceptions to the Rape Shield Statute and appears to be directly in conflict with our Supreme Court's holding in State v. Autry, 321 N.C. 392, 398, 364 S.E.2d 341, 345 (1988) (noting that, because a 'victim's virginity or lack thereof does not fall within any of the four exceptions[,]' it is an area 'prohibited from cross-examination by Rule 412[,]' and the rule does not violate a defendant's right to confront an adverse witness)."
This same analysis should have applied in K.W., making the trial court's ruling proper, although, based upon the court of appeals' harmless error finding, it ended up not making a difference in the disposition.