Tuesday, January 10, 2012
The Loss Of Sexual Innocence: Supreme Court Of Guam Finds Trial Court Erred In Limiting Cross-Examination Of Child Rape Victim
A defendant is on trial for criminal sexual conduct based upon acts that he allegedly committed against a 10 year-old victim. Previously, a forensic examination of the alleged victim revealed scar tissue on her hymen. Before trial, the defendant failed to comply with the procedure for admitting evidence under an exception to the rape shield rule, but he later asks to introduce evidence of another sexual crime committed against the alleged victim under one of these exceptions. The trial court refuses to allow defense counsel to cross-examine the alleged victim regarding evidence of this other sexual crime, but it does allow him to present such evidence through other witnesses. Sounds like a reasonable compromise, right? In fact, maybe the court shouldn't even have allowed the introduction of this evidence at all, right? Well, not according to the recent opinion of the Supreme Court of the Territory of Guam in Guam v. Ojeda, 2011 WL 6937376 (Guam Terr. 2011).
Notwithstanding any other provision of law, evidence of specific instances of a person's past sexual conduct is not admissible in any trial if an issue in such trial is whether such person was a victim of criminal sexual conduct, except that otherwise admissible evidence of specific instances of such conduct is admissible in such trial:
1. If such evidence:
i. is evidence of sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of pregnancy, disease, semen or injury....
For a defendant to admit such evidence under this exception, however, he must comply with 6 GCA § 8207(c)(1), which states that
If the person accused of criminal sexual conduct intends to offer under subsection (b) of this Section, evidence of specific instances of the alleged victim's past sexual behavior, the accused shall make a written motion to offer such evidence not later than fifteen (15) 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 that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence. Any motion made under this paragraph shall be served on all other parties and on the alleged victim if not a party.
The defendant, Arthur Ojeda, did not comply with § 8207(c)(1), but the trial court still allowed him to introduce certain evidence regarding another sexual crime committed (by Rey Hermosilla) against the alleged victim, M.A.D.C., to prove that this crime could have been the cause of the scar tissue on her hymen. Specifically, the court allowed defense counsel to question a nurse and a social worker regarding this other sexual crime, but it precluded defense counsel from cross-examining the alleged victim about the other crime.
After he was convicted, the defendant appealed, claiming that the trial court improperly circumscribed his cross-examination of the alleged victim. The State countered that the trial court shouldn't even have allowed the defendant to present evidence of the other sexual crime at all because he failed to comply with § 8207(c)(1). The Guam Supremes initially found that even if the defendant failed to comply with § 8207(c)(1), the trial court would have run afoul of the Confrontation Clause if it precluded evidence of the other sexual crime in a way that was arbitrary and/or disproportionate with the goals of Guam's rape shield rule.
The court then found that the trial court's restrictions on Ojeda's right to confront M.A.D.C. were not arbitrary. The trial court carefully considered the interest of protecting M.A.D.C. from repeated inquiry into the sexual assaults by Hermosilla, especially considering that she had to endure not one but two sexual assault trials. We share the concerns expressed by the trial court. The Confrontation Clause does not compel the admission of evidence that will harass and prejudice the victim, confuse the jury, jeopardize the witness' safety, or is repetitive or only marginally relevant.
That said, the court found that the trial court's decision to preclude the defendant from cross-examining the defendant was disproportionate to the goals of the rape shield rule:
Here, we recognize that the interest in protecting M.A.D.C., only ten years old at the time of trial, is compelling. We also acknowledge the potential embarrassment and discomfort to M.A.D.C. that would result from being forced to relive the assault or assaults by Hermosilla. We conclude, however, that the restrictions placed on Ojeda's rights to confront M.A.D.C. and to put on a full defense were disproportionate to the purposes these restrictions are designed to serve.
We agree with the People that the jury had learned at least some very basic information about the victim's allegations against Hermosilla. Merely providing bare information about a prior sexual assault against the victim, however, does not pass constitutional muster if the evidence does not provide sufficient information for a meaningful defense. Although the testimony of the [nurse and social worker] introduced the jurors to a possible alternative perpetrator, "Uncle Rey," there was very little definitive evidence regarding the exact types of sexual assault alleged to have been committed by Hermosilla. In fact, the only time penetration by Hermosilla was ever suggested was when the defense counsel asked [the social worker] if her report indicated "that there was possible digital and penile penetration," to which she responded "Yes."...The other evidence at trial suggested to the jury that the only person who might have penetrated and injured M.A.D.C. was Ojeda, leaving the jury to infer that he caused her injury. Without sufficient information to determine whether the alleged assaults by Hermosilla involved penetration, which could have provided a potential alternative explanation for the injury to M.A.D.C.'s hymen, a "serious risk of a conviction on erroneous reasoning" remained....Thus, to ensure a fair trial, Ojeda should have been afforded the opportunity to elicit conclusive evidence of the type of assault perpetrated by Hermosilla. While this opportunity might have been realized through a less restricted cross-examination of M.A.D.C., the information also could have been presented in a stipulation on the matter. Because the jury was not presented with conclusive evidence of the type of assault committed by Hermosilla, Ojeda was deprived of his right to put on a complete and meaningful defense. Any prejudice to M.A.D.C. is far outweighed by the probativeness of the excluded evidence, and the restrictions on Ojeda's right to confront M.A.D.C. were disproportionate to the purposes they are designed to serve.
The court thus granted the defendant a new trial, but should it have? I think that the answer is a clear "no." Sure, one goal of Guam's rape shield rule is to prevent the embarrassment and discomfort to alleged victims such as M.A.D.C., and sure, courts need to balance these concerns with the evidentiary needs of defendants.
But what about the other goals of the rape shield rule, specifically the goals of 6 GCA § 8207(c)(1)'s 15-day notice requirement? This notice requirement serves several purposes. It allows the prosecution to form arguments as to why an exception to the rape shield rule shouldn't apply. It allows the alleged victim to prepare for the possibility that evidence of other sexual acts committed by and/or against her might be admitted at trial. And, it allows the court sufficient time to be able to determine whether an exception to the rape shield rule applies and/or whether something like the stipulation suggested by the Guam Supremes makes sense.
The defendant didn't comply with the notice requirement of Guam's rape shield rule, and, the way I see it, the trial court did the best that it could with the time it was given. Given the lack of notice given by the defendant, I think that the trial court's application of Guam's rape shield rule was proportional. The Guam Supremes disagreed. And now, the alleged child victim has to go through a third trial regarding sexual abuse against her. And given the court's ruling, I'm guessing that the third trial will involve cross-examination of her regarding other sexual crimes against her.