EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, September 19, 2008

Rape Shield Redux: Pennsylvania Judge Addresses Novel Question In Rape Shield Case

In an upcoming case in Pennsylvania, the defendant has raised one oft repeated argument that never finds success under the rape shield rule and one unique argument that I have never seen raised before.  Gregory L. Mikesell faces charges of rape of an unconscious victim, involuntary deviate sexual intercourse with an unconscious person, and indecent assault and sexual assault.  Those charges stem from acts he committed against a female friend after a night of Halloween partying

According to the female friend,

After a night of partying, she went to the home of Miskell's friend and woke up sometime during the night to find Mikesell taking off her underwear and trying to perform oral sex on her. She called out, "Greg, what are you doing?" and told him to stop.  After going back to sleep, she later awoke again and saw Mikesell taking off his pants and underwear. When he thereafter began having sexual intercourse with her, she said "Greg, no, no, no," and pushed him off of her.  Subsequently, she went downstairs to call police, but that the call was cut off before she could make a report.

Mikesell tells a different version of the events of that night.  According to him, the friend and he had begun to "get physical," but the friend at some point become upset and ran from the room.  He said he did not know why she had become upset.

In order to try to prove his version of events and that he thought that the friend was consenting to intercourse, Mikesell asked the court to deem two types of evidence admissible.  The first type of evidence was evidence relating to a phone call between the alleged victim and a fiancee.  Defense counsel indicated that the alleged victim was acting flirtatiously toward the woman's fiance and that she told the fiancee that her fiance "would not be coming home that evening."  Indeed, defense counsel alleged that the call was so devastating for the fiancee that the fiancee attempted suicide "in light of the call from the (woman) and the comments made."  According to defense counsel, evidence of the phone call was necessary to show what Mikesell thought about the woman's "flirtatious nature that evening."

Now, if Mikesell were simply using evidence of the phone call to prove that the alleged victim likely consented to the sexual act at issue, it would be inadmissible under Pennsylvania's Rape Shield Rule, which states that "[e]vidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence."

Mikesell, however, was attempting to use the oft attempted end around of claiming that he was using evidence of the phone call, not to prove consent, but to prove that he thought that the alleged victim was consenting.  And just as Mikesell's argument has been oft raised, it has been oft rejected.  Indeed, a military court was presented with similar facts in United States v. Knox, 1992 WL 97157 (U.S.A.F.Ct.Mil.Rev. 1992), where the defendant tried to use evidence of the alleged victim's promiscuity to prove that "he thought [the complainant] was awake and by her actions was consenting to his advances."  The court, like all other courts of which I am aware, found that there was no merit to the argument because the defendant was, in essence, trying to use the evidence to prove the same purpose proscribed by the rape shield rule.   

The second type of evidence was evidence relating to the platonic relationship between Mikesell and the alleged victim, including evidence that the pair had slept together without having sex prior to the October incident.  According to Mikesell, evidence that the two slept together, even though they did not "sleep together,"  would show the "progress" in the relationship that led to what he said was consensual sex.

Now, if Mikesell were claiming that he had prior sexual relations with the alleged victim, his argument would not be novel, and the evidence would be admissible under the exception listed in the previously cited Pennsylvania's Rape Shield Rule.  But Mikesell wanted to introduce evidence of a non-sexual act to prove that his platonic relationship with the alleged victim was progressing, leading to the culminating sexual act, which was, according to him, consensual.  Because this evidence involved a non-sexual act, it wasn't covered by Pennsylvania's Rape Shield Rule, and the judge found that it would be admissible at trial and that it would be up to a jury to decide whether it added up to a form of consent. "Some guys may consider that to be a green light. I don't know," the judge said. "But isn't that for a jury to determine?"

With due respect to the judge, I'm not sure that it is.  I suppose that the evidence might have some probative value for proving consent (or the defendant's belief that the alleged victim was consenting), but it seems to me that any probative value would be substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, making it inadmissible under Pennsylvania Rule of Evidence 403.  What do readers think?



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