EvidenceProf Blog

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

Saturday, September 26, 2009

The Devil Is In The Dictum: Second Circuit Makes Troubling Statements In Dictum In Rape Shield Ruling

A female employee allegedly flashes her breasts to co-workers at the workplace. That female employee later brings a sexual harassment action against her superior, claiming that he touched her thighs and breasts, offered her job security in return for sex, and showed up uninvited at her residence. The superior, who was not present during the alleged breast flashing, seeks to present evidence of this flashing in his defense. How should the court rule? Clearly, the answer should be to deem the evidence inadmissible. And indeed, that is what the United States District Court for the Southern District of New York held in hearing a case with these facts: Basile v. Spagnola. Moreover, the Second Circuit recently affirmed that decision in its recent opinion in Basile v. Spagnola, 2009 WL3015489 (2nd Cir. 2009). So, what's the problem? Well, in this case, the devil is in the dictum.

The facts in Spagnola were basically the facts listed above. Julia Basile brought a sexual harassment action against her superior, Walter Spagnola, and

presented testimony from herself and two other witnesses about multiple incidents of inappropriate behavior by Spagnola. These witnesses detailed inappropriate behavior by Spagnola, including touching Basile's thighs and breasts, offering her job security in return for sex, and showing up uninvited at Basile's residence.

In an attempt to defend against these claims,

Spagnola sought to introduce testimony that Basile had flashed her breasts at the workplace when Basile was offduty. Spagnola did not witness the event himself, relying on hearsay from a co-worker. The court declined to admit the evidence, finding that the prejudicial effect of the evidence outweighed the probative value.

The Second Circuit affirmed this ruling, but not because it agreed with the district court's conclusion. Instead, according to the Second Circuit, the district court

stated that the ruling was merely a preliminary one, and provided Spagnola the opportunity to produce eyewitnesses who could testify as to the incident. He failed to do so. In light of this, it was not an abuse of discretion for the court to deny Spagnola's motion in limine and preclude evidence of Basile's sexual conduct.

The Second Circuit should have just affirmed the district court's ruling. Instead, the appellate court implied that the problem with Spagnola's argument was that he was relying upon hearsay rather than eyewitness testimony, not that the evidence he sought to admit was completely irrelevant to the issues at trial.

The Second Circuit noted that the rape shield rule -- Federal Rule of Evidence 412 -- applies to sexual harassment lawsuits. And the court noted that, unlike in criminal cases, evidence of past sexual behavior by a civil plaintiff is almost never admissible under an exception to the rape shield rule because such evidence is only admissible "if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party."

I can't think of how evidence of Basile's alleged breast flashing would have any probative value on the issue of whether Spagnola sexually harassed Basile, especially when he wasn't even present for the alleged act (not that his presence would have changed things). Meanwhile, the admission of such evidence would greatly harm Basile and cause unfair prejudice to her case. It thus seems to me that the district court was completely correct in finding that the problem with the evidence Spagnola sought to introduce was its substance, not its form. Conversely, I don't know what the Second Circuit was thinking.



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If Spagnola was present when Brasile "flashed" why is that not potentially admissible to show that Spagnola had an honest and reasonable belief that Brasile consented to being touched? Not saying it would under 403 under these facts, but could there not be a set of circumstances where such actions are admissible?

Posted by: Phil Cave | Sep 26, 2009 9:43:06 AM

Phil, under the rape shield rule, defendants can't use evidence of past sexual behavior to prove that the alleged victim consented or that the defendant thought that the alleged victim consented. See, e.g., United States v. Knox, 1992 WL 97157 (U.S.A.F.Ct.Mil.Rev. 1992). In other words, this possible use could not be considered as part of the probative value analysis.

Posted by: Colin Miller | Sep 26, 2009 10:41:04 AM

On general use, I completely agree with you. And certainly I don't quibble with the type of evidence being proffered in Knox being barred. And certainly I agree with the result in Spagnola.
My nuance was that posit Basile being present when the complaining witness flashed, he saw it, and he honestly believed the flash was directed at him (and not the group gawking), and then shortly after that he was in a situation where he thought she was further coming on to him and giving permission for an advance? Could that not be relevant as to his subjective belief as to consent? It might not be objectively reasonable, but at least you can get one prong, and I don't think you have to show the evidence is relevant to both prongs of mistake.
I do a lot of these type of cases and this type of "evidence" is pretty common. Sometimes the judge agrees, sometimes not. Although I must agree most of the cases arise in a social setting when there's been a lot of alcohol flowing.
My non-legal analysis would be that anyone in a supervisory position in a work setting should be fired, not just for the harassment but for the terminal stupidity and lack of common sense.

Finally, decent of you to throw a military case at me. Thanks!!! I'm getting ready for an appellate oral argument on a 412 issue I had in a case at trial. Looking at Knox lead me to another case that might help me. I'd give you a smiley face if I could figure how to do it on comments.


Posted by: Phil Cave | Sep 26, 2009 3:24:10 PM

Phil, thanks for the explanation. I thought that you were talking about a potential situation where Spagnola was present and then the alleged acts of harassment were removed in time. If the alleged flashing was relatively contemporaneous with the alleged acts of harassment, I think you are right that it is a closer call.

Posted by: Colin Miller | Sep 26, 2009 5:50:27 PM

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