Thursday, September 4, 2008
Shielded From Justice?: Court Of Appeals Of Mississippi Seemingly Reads Exception Out Of Rape Shield Rule
The recent opinion of the Court of Appeals of Mississippi in Goldman v. State, 2008 WL 4041284 (Miss.App. 2008), contains what seems to me to be a partially correct and a partially incorrect ruling under Mississippi's rape shield rule. In Goldman, Michael Goldman was convicted of, inter alia, sexual battery and aggravated assault, in connection with acts that he committed against the alleged victim. At the time of those acts, Goldman was 18 years-old, and the alleged victim was 16 years-old (in Mississippi, age 16 is the age of consent). Goldman's defense was that the intercourse was consensual. He claimed to have known the alleged victim since he was fifteen years old and testified that they had spent time together at school and at church.
He also wanted to cross-examine the alleged victim about her past sexual relationship with him and produce evidence from other witnesses to prove that he previously had sex with her. The controlling Rule on this issue was Mississippi Rule of Evidence 412, which states in relevant part that:
"(a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sexual offense against another person, reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual offense is not admissible.
(b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sexual offense against another person, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is: * * *
(2) Admitted in accordance with subdivision (c) hereof and is evidence of * * *
(B) Past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which a sexual offense is alleged * * *
(c) (1) If the person accused of committing a sexual offense intends to offer under subdivision (b) evidence of specific instances of the alleged victim's past sexual behavior or evidence of past false allegations made by the alleged victim, the accused shall make a written motion to offer such evidence not later than fifteen days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties and on the alleged victim."
In other words, in a sexual battery case, evidence that the alleged victim engaged in other sexual acts is inadmissible to prove that she had a general propensity to consent to sexual acts and that she likely acted in conformity with that propensity, and thus consented, at the time of the alleged crime. However, previous sexual acts between the alleged victim and the accused may be admissible to prove that there are specific reasons to believe that she may have consented to the sexual act at issue. But, in this latter situation, the accused has to comply with the notice requirements of Mississippi Rule of Evidence 412(c)(1) listed above, and the Court of Appeals of Mississippi noted that the trial court properly precluded Goldman from presenting evidence regarding his past sexual relations with the alleged victim because he failed to so comply. This is the ruling with which I agree.
The Court of Appeals of Mississippi also found, however, that the trial judge properly concluded that such evidence would have been inadmissible even if Goldman complied with the notice requirements of Mississippi Rule of Evidence 412(c)(1) because the evidence was "irrelevant." The appellate court agreed with this conclusion, noting that, "[a]s we have held before regarding the defense of consent, '[a]ll that was relevant regarding sexual relations at this trial was whether the victim consented to the shocking abuses visited upon him on in question].'" Fuqua v. State, 938 So.2d 277, 283 (Miss.App. 2008).
Now, maybe, the Court of Appeals of Mississippi didn't intend to use such sweeping language and won't use such language or reasoning in subsequent cases in which defendants do comply with the applicable notice provisions. But it certainly seems to me that the court, in effect, is improperly reading an exception out of the rape shield rule and finding that evidence of prior sexual relations between the defendant and the alleged victim are never admissible.