EvidenceProf Blog

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

Friday, April 18, 2008

Penn State Rape Case, Take 2: Judge Rules That Prior False Rape Allegation Will Be Admissible In Austin Scott Trial

Previously, I posted an entry about Penn State running back Austin Scott, who is charged with raping a 22 year-old fellow student.  As I noted, it was unearthed that Scott's accuser had made similar allegations against a student at Moravian College in Bethlehem, Pennsylvania in 2003; the student-defendant in that case was found "not guilty" of rape, and the jury deadlocked on lesser charges.  I indicated at the time that Scott's attorney asserted that he would seek to use this prior allegation at Scott's trial to undermine the alleged victim's allegations, and I concluded, "I don't see how Scott's attorney could be correct."

Well, there was one key fact about the prior allegation about which I was unaware, which has led Center County Judge Thomas King Kistler to rule that Scott's accuser can be questioned about the prior allegations.  And the fact was that the alleged victim actually admitted under oath that she lied about the 2003 incident and said that the encounter was "mostly consensual."  But, you know what?  I still don't think that it should have made the prior allegations admissible.

Rape shield laws were enacted because defense counsel in rape cases would typically call all of the victims' other sexual partners in an attempt to prove to jurors that the victim was promiscuous and thus likely consented to the sex at issue.  Of course, this practice was pernicious, which led to the enactment of rape shield rules, which prevent defense counsel from inquiring into and/or proving other sexual acts by the victim.  Pennsylvania's rape shield rule is contained in P.A. C.S. Section 3104.  However, a per se rape shield rule could violate the constitutional rights of an accused, which is why there are exceptions to rape shield laws.  One such exception, which is typically used when an alleged victim has made prior false rape accusations, allows for a defendant to prove sexual acts of an alleged victim if the evidence's exclusion would violate the accused's Constitutional rights.  As I previously noted, Pennsylvania actually does not have such an exception, but it has crafted out such an exception in its case law.

This, however, leaves the question of whether this exception applies to the Scott case.  I would argue that it does not.  Let's look at the Pennsylvania case, Commonwealth v. Boyles, 595 A.2d1180 (Pa.Super. 1991).  In Broyles, the court cited to a previous case, Commonwealth v. Black, 487 A.2d 396 (Pa.Super. 1995), and construed it as follows:

     "In Black, the defendant's daughter accused him of raping her. The defendant offered testimony concerning his daughter's consensual sexual relationship with her brother who had left home and separated from the family after violent arguments with the defendant. The defendant offered this evidence to show bias on the part of the daughter against him and a motive to seek retribution by false accusation. Under those circumstances, the Court held that the Rape Shield Law could not be used to exclude relevant evidence showing a victim's bias or attacking his or her credibility." (emphases added)."

In other words, there is an exception the Pennsylvania rape shield rule when the alleged victim has made a prior false rape accusation which is relevant to prove a specific bias/motive to fabricate rape charges against an accused in a later case.  What happens, however, when an alleged victim makes a prior false rape accusation which is unrelated to a later rape case?  Does the Black exception apply there as well?  According to the court in Broyles:

     "Although the court in Black stated that evidence attacking the victim's credibility could not be excluded under the Rape Shield Law, the attack on the victim's credibility in that case was based on the victim's possible bias against and hostility toward the defendant and her motive to fabricate. In later cases, this Court has applied the holding of Black only where the victim's credibility was allegedly affected by bias against or hostility toward the defendant, or the victim had a motive to seek retribution....Moreover, this Court has determined that, under Section 3104(a) of the Rape Shield Law, testimony regarding the victim's claims of past sexual attacks is inadmissible."

In other words, evidence of prior false rape allegations is inadmissible in this "unrelated" situation, which is the situation presented by the Scott case.  Thus, pursuant to the ruling in Broyles, which is consistent with other case law in Pennsylvania and across the country, the alleged victim's prior false allegation should have been inadmissible, and I'm not sure why Judge Kistler ruled otherwise.  We will have to wait at least a few days to see whether the prosecution's appeal of the ruling is successful because the case has been delayed at least until next week, despite the claims of Scott's attorney that the delay will irreparably harm Scott in the upcoming NFL Draft



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