Tuesday, September 15, 2009
Unlike its federal counterpart, NRS 50.090 -- Nevada's rape shield law -- only applies in criminal cases. Does that mean, however, that judges in civil cases are precluded from precluding discovery regarding a civil plaintiff's sexual history? According to the recent opinion of the Supreme Court of Nevada in Sonia F. v. Eighth Judicial Dist. Court, 2009 WL 2900770 (Nev. 2009), the answer is "no."
In Sonia F., Sonia F. the guardian ad litem for fourteen year-old J.M., filed a civil complaint against Amir Ahmad,
alleging various causes of action, all of which stem[med] from Ahmad's alleged rape of J.M. Specifically, Sonia F. claim[ed] that on the morning of July 5, 2006, Ahmad, who was 20 years old, forcibly raped her 14-year-old daughter, J.M., in Ahmad's parent's home. As a result of Ahmad's conduct, Sonia F. allege[d] that J.M. suffered and continues to suffer physical, emotional, and mental harm. Ahmad admit[ted] having sexual intercourse with J.M. but contend[ed] that it was consensual.
Ahmad thereafter filed a motion to compel J.M. to submit to an independent medical examination which would have involved questions about J.M.'s sexual history. Sonia F. responded by moving for a protective order, but the district court found that such questioning could proceed, prompting Sonia F. to file an emergency petition to the Supreme Court of Nevada seeking clarification of Nevada's rape shield law to civil cases.
The problem for Sonia F. was that the court found that NRS 50.090 plainly and unambiguously "applies to criminal prosecutions but not to civil trials." And the Supreme Court of Nevada "defer[red] to the Legislature to determine whether the public policy underlying the criminal rape shield law should be extended to include civil cases."
But that wasn't the end of the court's analysis. Instead, the court stated,
Nevertheless, in civil sexual assault cases, we conclude that discovery should not be unlimited. Rather, the district court should use its sound discretion to determine whether the discovery sought is consistent with NRCP 26(b)(1), which provides that inquiries must be relevant and "reasonably calculated to lead to the discovery of admissible evidence."
The court then suggested that the district court on remand could grant Sonia F.'s protective order, identifying D.S. v. Depaul Institute, 32 Pa. D. & C. 4th 328 (Ct.Com.Pl. 1996), as instructive on the issue. According to the Nevada Supremes,
Although the DePaul court concluded that Pennsylvania's criminal rape shield law did not apply in civil cases, it determined that discovery of a plaintiff's entire sexual history in a civil action was inappropriate....The court differentiated between the plaintiff's history of consensual sexual relationships from history of traumatic experiences,...and thereafter emphasized that while consensual relationships may impact a person's emotions, "[t]he law should not force plaintiffs...to disclose their entire [consensual] sexual...histories whenever they claim that they have sustained psychiatric problems from a traumatic event.
The court did "not adopt a steadfast rule related to discovery in all civil proceedings for sexual assault," but it did "stress that a district court has the broad discretion under NRCP 26 to determine, on a case-by-case basis, whether an alleged sexual assault victim's sexual history is discoverable." I think that this is the right analysis and hope that, at a minimum, other states with rape shield laws that only apply in criminal cases adopt a similar analysis.