EvidenceProf Blog

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

Friday, December 6, 2013

Jameis Winston, Kobe Bryant & Florida's Rape Shield Rule

Yesterday, Florida State quarterback Jameis Winston was not charged with sexual assault. As per Florida law, 86 pages of investigative material was made public. Inside those pages, we can find probably the biggest reason for charges not being brought: 

[I]nvestigators found a second DNA profile on the shorts the woman provided. (Winston's DNA profile was found on her underwear.) A defense attorney could use an unknown DNA profile as the foundation of his defense. If prosecutors couldn't positively identify the source of the unknown DNA profile, a defense attorney could suggest that the person who provided the other sample committed the rape. That would likely provide reasonable doubt in jurors' minds. So if Meggs was going to prosecute, he would have to identify that sample. "She acknowledged having sex with her boyfriend," Meggs said. "But she wouldn't tell me who her boyfriend was. Being a shrewd investigator, we found out, and we got his DNA." The investigation could have wrapped up more quickly if not for the delay, which required Meggs to enlist the help of a prosecutor in Ohio to request the boyfriend's DNA.

Let's take a look at the law that governs such evidence.


Section 794.022(2) of the Florida Statutes provides that

Specific instances of prior consensual sexual activity between the victim and any person other than the offender shall not be admitted into evidence in a prosecution under s. 794.011. However, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence may prove that the defendant was not the source of the semen, pregnancy, injury, or disease; or, when consent by the victim is at issue, such evidence may be admitted if it is first established to the court in a proceeding in camera that such evidence tends to establish a pattern of conduct or behavior on the part of the victim which is so similar to the conduct or behavior in the case that it is relevant to the issue of consent.

This is Florida's rape shield rule, and, as you can see, it generally precludes evidence of any sexual acts of the alleged victim besides the one that led to the charges against the defendant. But, based on the investigative material released, it is clear that the defense could have established that Winston was not the source of certain DNA/semen found on the victim and used that evidence to claim that the victim slept with someone else relatively contemporaneously. And, what we know from cases like the Kobe Bryant prosecution, when such evidence is present, it is likely game over for the prosecution, which is why both cases end before they really started.

There's a least one case in which a Florida court previously applied this exception: McGriff v. State, 601 So.2d 1320 (Fla.App. 2 Dist. 1992). In McGriff,

The defense attempted to introduce testimony that the victim engaged in sexual acts with persons other than appellant, and that such acts were the source of the abnormal physical findings. He sought to introduce such testimony because of the pediatrician's testimony concerning old and healed scarring. The trial judge apparently misinterpreted the defense's request as an attempt to put on improper evidence of the victim's lack of chastity and, thus, rejected his effort to proffer evidence concerning another source of the victim's injury.

On appeal, the court found this ruling was error and thus reversed the defendant's conviction.



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Game over? That's ridiculous. We have 30 plus years of best practices in rape prosecution with excellent strategies to address multiple DNA samples, and many other common challenges such as language barriers, delayed reporting, reluctant and terrified victim witnesses, and developmental disabilities (the population with the highest rate of sexual assault victimization). I recall as a former prosecutor a midwestern jury swiftly convicting a defendant charged with the rape of a prostitute, based largely on her powerful in court testimony. Current mental health research advances are increasing the ability to educate juries with evidence of long term mental health impacts of sexual assault with traumatic stress experts. Any prosecutor who throws in the towel simply because there is a second or even third DNA sample is not protecting the community from rape.

Posted by: Jennifer Brobst | Dec 8, 2013 7:35:15 PM

Jennifer, thanks for the comment. By no means am I trying to say that prosecutors should give up when there is such evidence and/or that jurors shouldn't convict. I'm simply saying that conviction rates are already low in sexual assault cases, and that rate drops even more when evidence is admissible under an exception to the rape shield rule. See, e.g., I. Bennett Capers, Real Women, Real Rape, 60 UCLA L. Rev. 826, 828 n.5 (2013) ("Rape shield laws have been applied haphazardly and incoherently. As Michelle Anderson observed a decade ago, 'Cases managed to slip past rape shields when they involved women previously intimate with the defendant, women who frequented bars to attract new sexual partners, prostitutes, or other women deemed similarly promiscuous.' Michelle J. Anderson, From Chastity Requirement to Sexuality License: Sexual Consent and a New Rape Shield Law, 70 Geo. Wash. L. Rev. 51, 55 (2002). Beyond these problems, rape remains perhaps the most underreported crime, and conviction rates, whether by plea or following trial, remain abysmally low. See Bryden & Lengnick, supra note 4, at 1210, 1220.").

Posted by: Colin Miller | Dec 9, 2013 5:15:46 AM

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