EvidenceProf Blog

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

Thursday, August 9, 2012

Under The Shield: Court Of Appeals Of Texas Finds Rape Shield Rule Doesn't Cover Nonconsensual Acts, Still Rules Against Defendant

I have written before about court opinions concluding that rape shield rules cover only other consensual sexual acts by the alleged victims and not other nonconsensual sexual acts by alleged victims. In those posts, I have disagreed with those conclusions. I acknowledge that part of the rationale for rape shield rules is to prevent jurors from concluding that the alleged victim was promiscuous and that she likely consented to the sexual act at issue. But rape shield rules are also in place to protect the privacy of alleged victims, to protect them from embarrassment, and to encourage them to come forward with allegations of rape and sexual assault. And I think that having rape shield rules cover other nonconsensual sexual acts protects these latter interests.

In its recent opinion in Woodall v. State, 2012 WL 3089386 (Tex.App.-Texarkana), the Court of Appeals of Texas, Texarkana, found that Texas' rape shield rule does not cover other nonconsenual sexual acts, a conclusion with which I disagree. Notwithstanding this conclusion, the court deemed evidence of the alleged victim's other nonconsensual sexual act inadmissible, a conclusion with which I also disagree. Why?

In Woodall, Anthony Woodall was sentenced to ten years' incarceration after his conviction by a jury of indecency with a child (Nicole) by contact. At trial, Nicole's mother testified that since Woodall's acts against her,

Nicole wakes up with nightmares at least three times a week and that she is frightened of men. Her entire demeanor is completely different than it was before this incident. Nicole has changed schools three times since this incident. When Nicole's mother was asked if the nightmares are all attributed to the incident involving Woodall, she responded, "[S]he wasn't having nightmares before any of this happened." Nicole's mother testified that she attributed the nightmares to the incident involving Woodall.

In response, "Woodall sought to introduce evidence of Nicole's kidnapping and subsequent sexual assault to show another potential cause for the nightmares other than the offense for which he stood trial." The trial court deemed this evidence inadmissible, and this decision formed part of the basis for Woodall's appeal.

In addressing this issue, the Court of Appeals first noted that

Rule 412, commonly known as the Texas rape shield law, was designed "to restrict the introduction of evidence regarding the complainant's prior consensual sexual behavior to situations in which the evidence is both relevant to a defendant's defense and not unduly prejudicial or inflammatory."...In that case, the defendant sought to introduce past sexual behavior of third parties to which the complainant could not have consented; Rule 412, therefore, did not apply....Here, Woodall sought to introduce evidence of the subsequent sexual behavior of a third party to which Nicole could not have consented. Accordingly, Rule 412 does not apply.

I disagree with this conclusion, but I do agree that the evidence was potentially admissible. Why? Rape shield rules have exceptions for evidence of other sexual acts offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence. Texas' exception is contained in Texas Rule of Evidence 412(b)(2)(A), which provides an exception to the rape shield rule for other sexual evidence "that is necessary to rebut or explain scientific or medical evidence offered by the State...."

Now, technically, this exception doesn't apply to the evidence in Woodall, but Texas' rape shield rule does also have an exception for evidence of other sexual acts "that is constitutionally required to be admitted...." Under this exception, Woodall's argument is pretty clear: Using evidence of another sexual act to prove the source of the alleged victim's nightmares is very similar to using other sexual act evidence to prove the source of the alleged victim's physical injuries. Indeed as I have noted before, courts in other jurisdictions have accepted this exact argument.

So, back to Woodall. Whether for the reason given by the court or the reason given by me, the subject evidence was potentially admissible. So, why did the court deem it inadmissible? The court found that

Woodall sought to introduce evidence of Nicole's kidnapping and subsequent sexual assault to show another potential cause for the nightmares other than the offense for which he stood trial. The trial court could have reasonably concluded that the inherent probative force of this evidence was considerable, since Woodall was accused of one incident of sexual indecency with Nicole. Moreover, Woodall correctly contends that Nicole's mother's testimony left the jury with the impression that all of Nicole's problems stemmed from the incident involving Woodall. Therefore, this evidence was relevant and probative to Nicole's mother's claim that Woodall was the sole cause of Nicole's trauma.

Conversely, the trial court reasonably concluded that the kidnapping and sexual assault could tend to confuse or distract the jury from the main issues in the case. In addition, it is reasonable to conclude that the December incident could have a tendency to be given undue weight by the jury. After balancing the various Rule 403 factors, the trial court's decision to exclude the December incident was within the "zone of reasonable disagreement." Therefore, we find no error and overrule this appellate point.

Was that good enough? I don't think so. According to the court, the subject evidence had "considerable" probative force and a considerable tendency to confuse, distract, and be overvalued. Texas Rule of Evidence 403 provides that 

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or needless presentation of cumulative evidence.

From the above analysis, it seems to me that probative value equalled the dangers listed in Rule 403 or was perhaps outweighed by them, but not to a substantial degree. And if that was the case, the evidence should not have been excluded.



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