EvidenceProf Blog

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

Thursday, January 17, 2008

The Rape Sieve Law?: Supreme Court Of Maine Hears Strange Rape Shield Law Appeal

In 2006, Brandon Drewry was convicted of brutally raping and attacking a married woman in Portland, Maine, based in part on a seemingly incorrect evidentiary ruling.  The alleged victim called police on the morning of August 30, 2004 and said she met a stranger on Portland Street and went on a walk with him to smoke marijuana.  She told police, and later testified, that the stranger dragged her down an alley with tall weeds and broken glass, choked her, causing her to pass out twice, punched her, forced her to have oral sex, and penetrated her with his fingers, but did not rape her vaginally.  Relying upon the description that she gave them, police apprehended Drewry at a nearby shelter.  Police recovered a hooded jacket in Drewry's backpack, which the alleged victim said belonged to her; she also identified Drewry as her assailant.  The alleged victim admitted that she was a crack cocaine user, was receiving treatment for medical health issues, and was on the street looking for drugs when she was attacked.

DNA was later recovered from a semen sample taken from her vagina, and it did not match Drewry's DNA.  Pursuant to Maine's rape shield law, Maine Rule of Evidence 412, evidence of a victim's past sexual behavior is generally inadmissible at a trial because of the fear that the jury will deem her promiscuous and believe that she is making a false accusation.  Evidence of such past sexual behavior, however, is admissible "upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury."  Accordingly, the judge hearing Drewry's case allowed him to present evidence that the DNA collected from the alleged victim was not a match for his DNA.

The judge, however, refused to allow the jury to hear that the DNA also did not match the victim's husband's DNA (and that it did not match the DNA of another man she was allegedly sleeping with).  Instead, the trial judge accepted the prosecution's argument that the actual source of the semen was irrelevant because the victim never claimed she was sexually assaulted vaginally by Drewry.  Drewry is presently arguing his appeal before the Supreme Court of Maine.

To me, the trial court's decision makes no sense.  If the source of the semen was irrelevant, why did it allow for testimony that the recovered DNA was not a match for Drewry's DNA?  If there was no question as to whether Drewry was the source of the semen recovered from the alleged victim's vagina, this testimony should have been precluded under the rape shield law.  However, once that testimony was allowed, I see no principled reason for the court to have excluded other information relating to the source of the semen.

Furthermore, while it is difficult to reach any conclusions about the case without viewing the record, it seems to me that there was clearly a question about the source of the DNA.  Sure, the alleged victim claimed that her assailant did not vaginally rape her, but she also testified that she passed out twice during the assault and that the assailant penetrated her with his fingers.  It seems plausible that the assailant's semen could have been transferred to the victim's vagina via his fingers or while she was passed out, a plausibility that seems borne out by the decision to take the vaginal semen sample.  If there was a decent possibility that it could have been the assailant's semen recovered from the victim, the source of the semen would be highly relevant, invalidating the trial judge's decision.  It will be interesting to find out more about the case when the Supreme Court of Maine renders its opinion.



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» Really Interesting Rape Shield Law Case from Sex Crimes
It's nice having another blogger right across the hall from me. Colin Miller at EvidenceProf Blog posted about a Maine case that really shows an unusual result in a rape shield case. We spent a good part of the day [Read More]

Tracked on Jan 17, 2008 6:05:46 PM


In court, the use of DNA tests, is sometimes, many times actually, essential.

Posted by: dnaattorney | Jun 29, 2009 8:12:03 AM

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