Tuesday, March 11, 2008
Disturbing Behavior: Court of Appeals of Kansas Finds Trial Court Failed To Apply Constitutional Exception To Rape Shield Rule
The Court of Appeals of Kansas' recent opinion in State v. Jackson, 2008 WL 538948 (Kan.App. 2008), contains an interesting application of the rape shield rule. In Jackson, Darrell Jackson was a family friend who babysat for A.C., a girl who was between ten and twelve years old between 1999 and 2002. According to A.C., during this time period, Jackson sexually assaulted her more than 50 times. During this period of time, A.C. was twice placed into the custody of the Kansas Department of Social and Rehabilitation Services (SRS). At trial, the prosecution:
"emphasized-from opening statement to closing argument-that A.C.'s behavior had deteriorated in significant ways starting about the time of the alleged offenses by Jackson and continuing up until the time of trial. In opening statements, the prosecutor said that A.C.'s mother had noticed changes beginning in summer 1999; A.C. was 'acting out, a lot more argumentative, a lot more disagreeable, ... and really behaving badly.' Later in opening, the prosecutor said that after A.C. went into foster placement in 2002, her mother found out 'why [A.C.] has been acting up and behaving so badly between 1999 and her final entry into SRS custody, 2002'-that she had been abused by Jackson. A.C.'s mother testified as forecast in the opening statement, saying that A.C.'s behavior had changed from 1999 until early 2002, during which time she had been 'real hateful to people.'"
The prosecution also argued that A.C. was fearful of returning home from SRS custody because she feared being placed in close proximity to Jackson.
Meanwhile, Jackson attempted to introduce evidence of other sexual assaults reported by A.C. between 1999 and 2002. These consisted of:
-claims that two other juveniles, Joseph H. and Travis S., sexually assaulted her in 2000 and 2001; both admitted to these acts and were adjudicated as juvenile offenders;
-the claim that her stepbrother attempted to have sex with her and engaged in oral sex with her in 2001; SRS substantiated these allegation, but no charges were brought against the stepbrother; and
-the claim that an employee at a facility in which SRS placed her sexually assaulted her; A.C. later recanted this claim.
So, how did the trial court rule on this evidence? Well, Kansas has a rape shield law, KSA 21-3525, which is functionally the same as the rape shield rule contained in Federal Rule of Evidence 412. Under the rape shield law, in a case involving alleged sexual misconduct inter alia, evidence of past sexual acts by the victim is inadmissible to "prove" that the victim consented to the sexual act at issue. In a criminal case, however, there is an exception for "evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence" and an exception when exclusion of evidence of other sexual behavior by the victim would violate the defendant's Constitutional rights.
So, looking at the recanted allegation of sexual abuse, the trial court found that this evidence was admissible because it did not actually involve a sexual act, making the rape shield law inapplicable. The trial court, however, found that the evidence of sexual abuse by the stepbrother was admissible as its exclusion would have violated the defendant's Constitutional rights because it was necessary to rebut the prosecution's claim that A.C. was fearful of returning home from SRS custody because she feared being placed in close proximity to Jackson, making it likely that Jackson indeed sexually abused her. On the other hand, the trial court found that the evidence of sexual abuse by two other juveniles was inadmissible.
On appeal, the Court of Appeals of Kansas reversed based upon this last evidentiary ruling. As noted, the prosecution argued that A.C.'s behavior deteriorated based upon the alleged sexual assaults by Jackson, and the court thus found that the evidence of the sexual assaults by the juveniles was necessary to rebut the claim that the deterioration in A.C.'s behavior was (solely) attributable to Jackson, making it likely that Jackson indeed sexually abused her.
The Jackson case, then, besides being very depressing, seems to create a clear category of sexual behavior evidence that falls under the Constitutional exception: evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of behavior deterioration. This makes sense to me because, as noted, when an alleged sexual assault victim claims that her pregnancy, bruises, etc. were caused by a sexual assault by the defendant, the defendant is entitled to prove that the pregnancy, bruises, etc. were caused by another sexual act close in time to the alleged sexual assault.