EvidenceProf Blog

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

Monday, July 23, 2012

Under The Shield: Should The Rape Shield Rule Apply At Sentencing Hearings?

Federal Rule of Evidence 412(a), the Rape Shield Rule, provides that

The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior; or

(2) evidence offered to prove a victim’s sexual predisposition.

At the same time, it is well established that the Federal Rules of Evidence do not apply at a sentencing hearing. See Federal Rule of Evidence 1101(d). So, let's say that a defendant is convicted of (1) persuading a minor to engage in sexually explicit activity for the purpose of producing a visual depiction, (2) use of a means of interstate commerce to persuade a minor to perform sexual acts, (3) receipt of child pornography, and (4) possession of child pornography. And, let's say that the defendant thereafter seeks to present evidence of the victim's other sexual behavior or predisposition at his sentencing hearing. Because the Federal Rules of Evidence do not apply at a sentencing hearing, does that mean that the Rape Shield Rule does not apply? Let's take a look at the recent opinion of the Sixth Circuit in United States v. Ogden, 2012 WL 2895261 (6th Cir. 2012).

In Ogden, the facts were as stated above, with the defendant, Daniel Ogden claiming, inter alia, that district court erred by applying the Rape Shield Rule to preclude him from admitting records of the victim's online conversations with other men during his restitution hearing, at the close of which he was ordered to pay for most of her psychotherapy expenses. The Sixth Circuit disagreed, finding that

Ogden cites nothing in the record to suggest the district court actually excluded the chat logs from the restitution hearing. And if Ogden assumes the court did so, he assumes too much: The rules of evidence do not apply during sentencing proceedings. See Fed.R.Evid. 1101(d). His argument is meritless.

With due respect to the Sixth Circuit, I think that it misunderstood Ogden's argument, and its last sentence makes little sense. It seems to me that Ogden's point was the same as the Sixth Circuit's: The rules of evidence do not apply during sentencing proceedings. Accordingly, his argument was that Federal Rule of Evidence 412(a) does not apply during sentencing proceedings, meaning that its protections did not apply to the chat log evidence.

The Sixth Circuit seems to have missed this point, and, as far as I can tell, it is not covered by the Federal Rules of Evidence. It is however, covered by several states' rules of evidence. For instance, Washington Rule of Evidence 1101(c) provides that the Washington Rules of Evidence "(other than with respect to privileges, the rape shield statute and ER 412) need not be applied" at sentencing. And Section 16-97-103 of the Arkansas Code provides that

Evidence relevant to sentencing by either the court or a jury may include, but is not limited to, the following, provided no evidence shall be construed under this section as overriding the rape shield statute, 16-42-101....

These rules make sense to me. The Rape Shield Rule is in place to prevent judges and jurors from making inappropriate inferences regarding victims, to protect victims from shame and embarrassment, and to encourage victims to come forward with their claims. None of these values can be achieved if rape shield evidence were inadmissible at the guilt-innocence phase of trial but admissible at the sentencing phase of trial. I thus think that the Federal Rules of Evidence should be amended to make explicit that the Rape Shield Rule still applies at sentencing.



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Military rules of evidence are the federal rules of evidence. Except they can be, and are modified or expanded by the President using his Article 36, UCMJ, 10 U. S. Code 836, powers to make rules for courts-martial.

Military Rule of Evidence 1101(d) seems to take care of this problem and applies MRE (FRE) 412 to sentencing proceedings. http://court-martial.com/Media/military-rules-evidence.pdf

Perhaps the federal advisory committee can adopt the military approach.

Posted by: Phil Cave | Jul 23, 2012 5:33:20 AM

I disagree Colin.

The goal of restitution is to make the victim whole. It is fundamentally and categorically different than a fine. The victim wants monetary compensation for the mental harm done to her. Whatever mental harm that was done to her must be allocated among all the people who victimized her. What's going on right now is that the total harm (however that is calculated is being attributed to each criminal separately and individually. That makes no logical sense. Many courts have been treating restitution as if it were a fine and I believe that to be plain error.

The honest answer is that there is nothing that requires the victim to seek restitution, even if the law allows for it. But once the victim does the courts have to be allowed some way to make sense how to allocate that cost. Applying RSL to sentencing does is result in either an absurdity (which is what we have now) or plain old fashioned pulling numbers out of one's ass.

Posted by: Daniel | Jul 23, 2012 12:50:17 PM

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