Thursday, February 14, 2013
From Under the Shield: Court of Appeals of Texas Finds Rape Shield Rule Doesn't Cover Alleged Victim's Sexual Misconduct
(a) Reputation or Opinion Evidence. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.
(b) Evidence of Specific Instances. In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim's past sexual behavior is also not admissible, unless:
(1) such evidence is admitted in accordance with paragraphs (c) and (d) of this rule;
(2) it is evidence:
(A) that is necessary to rebut or explain scientific or medical evidence offered by the State;
(B) of past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior which is the basis of the offense charged;
(C) that relates to the motive or bias of the alleged victim;
(D) is admissible under Rule 609; or
(E) that is constitutionally required to be admitted; and
(3) its probative value outweighs the danger of unfair prejudice.
The typical evidence excluded under such rape shield rules is evidence proffered by a defendant concerning the victim's alleged character for promiscuity to prove her propensity to consent to sexual conduct and her likely conformity with that propensity at the time of the crime charged. But what if the evidence of the alleged victim's past sexual behavior that the defendant seeks to admit is evidence of past sexual misconduct? Let's take a look at the recent opinion of the Court of Appeals of Texas, Waco, in Johnson v. State, 2013 WL 531079 (Tex.App.-Waco 2013).
In Johnson, Joe Dale Johnson was convicted of two counts of aggravated sexual assault of a child and one count of indecency with a child. According to the Court of Appeals,
Complainant H.H. was a twelve-year-old boy who was participating in court-ordered counseling for sexually molesting his ten-year-old sister over several years. He had also been caught shoplifting and had strained relationships with his parents. Appellant, a man in his fifties and a board member of the church that he and the complainant attended, had previously been convicted of a sexual offense against a teenage boy thirty years before in Kansas. Appellant and the complainant spent time together, and the complainant accepted work mowing Appellant's and other church members' lawns for pay. The complainant testified that Appellant had lured him into Appellant's study and that Appellant had seduced him into allowing Appellant to perform fellatio on him and sought to have the complainant perform fellatio on Appellant. The complainant eventually told the youth minister, who was never interviewed by law enforcement and did not testify at trial, what had happened. The youth minister went to the complainant's parents to tell them what their son had told him. The parents, in turn, reported what they had been told to the Burkburnett Police Department. The purported offenses were alleged to have occurred in April 2007.
At trial, Appellant sought to elicit testimony that the complainant had been adjudicated delinquent for sexually molesting his ten-year-old sister and, among other things, was in court-ordered counseling as a result.
The trial court, however, precluded Johnson from eliciting such testimony, finding that it was inadmissible under Texas Rule of Evidence 412. After Johnson was convicted, he appealed, claiming
that the excluded evidence (1) was admissible to rebut the false impression the State had left with the jury regarding the primary reason the complainant was in counseling, thereby opening the door for the sexual abuse evidence; (2) impeached the complainant's testimony that his guilt in being the victim of sexual abuse was relieved when he made his outcry; and (3) supported the defense's theory that the complainant had fabricated the abuse allegations against Appellant to get attention and sympathy for himself.
The Court of Appeals of Texas, Waco, agreed, concluding that
Appellant was entitled to present his defense. As a fundamental right, the Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense. The complainant had already been adjudicated delinquent for sexually assaulting his younger sister. He was not particularly remorseful for that conduct, and his actions resulted in strained relations with his parents and the need for counseling. He was mad at Appellant, and, having been adjudicated delinquent for sexually assaulting his younger sister, he knew firsthand or should have known how damning and indefensible an accusation of sexual assault could be. Appellant was entitled to correct the misleading characterization of the complainant that the State had presented to the jury, but the trial court impermissibly limited his right to cross-examine both the complainant and other witnesses against Appellant and to present evidence. We therefore hold that the trial court abused its discretion by not allowing Appellant to cross-examine the complainant and other adverse witnesses with evidence of the complainant's prior sexual victimization of his little sister.