EvidenceProf Blog

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

Friday, October 12, 2012

eRape?: Should Courts Allow Rape Defendants to Discover the Google Searches of Their Victims?

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Jennifer Bennett was beaten, choked, and raped by Thomas Bray at his condo. Upon returning to her home, “[s]he stood at the entrance to her bathroom for 15 minutes, fighting the urge to scrub her body clean.”

“I had a decision to make: ‘Do I take a shower?’” Bennett recalled. “I stared at my shower. And I decided not to do it.”

Bennett decided against the shower, instead subjecting herself to a rape exam at the St. Charles Medical Center and questioning by police.

Later, Bennett faced another choice, an unprecedented choice for a crime victim in Oregon: whether to turn over her Google searches from the days before and after her rape. The judge ordered her to comply with a subpoena requiring her to disclose her searches. She refused. The judge then refused to enforce the subpoena. Eventually, Bray was convicted.

According to Bennett, by refusing to comply with the subpoena, she was making a stand on behalf of not only herself but all future rape victims. But will such stands be recognized in a world in which we increasingly live our lives online?

The request for Bennett’s Google searches was not the only search requested by defense counsel. Instead, the defense wanted her hard drive. They wanted access to herFacebook account. They wanted her e-mails. And they wanted the journals that she used for counseling for the healing process.

Most of these requests fell on deaf ears. The court did, however, order Bennett to comply with the subpoena to disclose her  Google searches. Specifically,

Defense attorney Stephen Houze requested Bennett’s Google search records because she had looked up the definition of rape in Oregon.

“At a minimum, it would have established that the accuser her self had grave doubt in her mind as to whether her encounter with my client constituted criminal behavior at all,” said Houze.

I think that Houze and I might quibble over what is meant by “at a minimum.” Why did Bennett look up the definition of “rape” in Oregon? I imagine that she was trying to determine the exact type or degree of rape that Bray committed and how long he could be put behind bars. I have little doubt that Bennett believed that the choking, beating, and coerced sex she endured was “rape.” Imagine instead that Bray broke into Bennett’s house and stole her television. If Bray then looked up the definition of “burglary” in Oregon, would we think that Bennett doubted that she was burglarized?

Many commenting on the Bennett story have wondered whether we are entering a brave new world of e-discovery in which rape victims may be discouraged from pressing charges lest the intimate details of their lives be exposed through extensive fishing expeditions as was the case before rape shield rules were enacted.

Personally, I think/hope that the Bennett case simply involved one bad discovery ruling. A court should quash a subpoena unless it “appears reasonably calculated to lead to the discovery of admissible evidence.” Vaughan v. Taylor, 718 P.2d 1387, 1390 (Or.App. 1986).  Moreover, all states have counterparts to the federal rape shield rule,  and the Advisory Committee’s Note to that rule indicates that “[c]ourts should presumptively issue protective orders barring discovery unless the party seeking discovery makes a showing that the evidence sought to be discovered would be relevant under the facts and theories of the particular case, and cannot be obtained except through discovery.”

Under what theory of the case were the Google searches by Bennett relevant? She claimed that she was beaten, choked, and forced to have sex against her will. The rape exam corroborated her claims. Given this, why was it at all relevant that Bennett thereafter decided to do some research under Oregon law to see the exact nature of the crime committed against her?

(Hat tip to Richard Underwood for the link)



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If you are teaching Rape Shield in your evidence course this Fall you can pull this up in class. The Students liked it. Interesting problem.

Posted by: rick underwood | Oct 12, 2012 10:06:52 AM

I haven't read enough details to be answer your final question. I'll only observe that that even assuming that the information is not relevant for this case it is certainly possible to imagine situations where it would be relevant. In rape cases in general there is an inherent tension between society's desire to protect the alleged victim and not allow the trial to be a further re-victimization and the need for the alleged criminal to be able to present a defense. Such balances need to be weighed quite carefully and with a great deal of thought and precision least we let our biases assume what we seek to prove.

The answer to the question in the title is simply: it depends. Such question have no black and white answer.

Posted by: Daniel | Oct 12, 2012 10:39:53 AM

Daniel: Agreed. It is all about the theory of the case. If, for instance, an alleged victim's friends claimed that she told them the day after the alleged rape that the sexual act was consensual, e-mails and social media evidence could be relevant, as an example.

Posted by: Colin Miller | Oct 12, 2012 11:10:19 AM

In other words, if we assume the victim is telling the truth and did not fabricate her story, the discovery request is irrelevant. The defendant, however, has the right to challenge those claims, and the jury has the job of determining whether those claims are true.

Posted by: anon | Oct 13, 2012 9:56:26 AM

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