Human Behavior: Eighth Circuit Construes Expressions Of Desire As "Sexual Behavior" For Rape Shield Purposes

Federal Rule of Evidence 412(a), the Rape Shield Rule, provides that

The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):

(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.

(2) Evidence offered to prove any alleged victim's sexual predisposition.

But what exactly constitutes sexual behavior? Well, as the recent opinion of the Eighth Circuit in United States v. Papakee, 2009 2066797 (8th Cir. 2009), makes clear, courts have construed this phrase, and thus Federal Rule of Evidence 412(a)'s proscription, broadly.

In Papakee, LaMont William Papakee and Connie Frances Blackcloud were convicted by a jury of committing sexual abuse against a Native American woman, L.D., in Indian country. Both men subsequently appealed, with Papakee claiming, inter alia, that the trial court "abused its discretion at trial by excluding evidence designed to attack L.D.'s credibility." Specifically, "Papakee sought to introduce testimony from Wesley Sebetka, a deputy in the Tama County Sheriff's Office, that while he was interviewing L.D. about the sexual abuse [shortly after it allegedly occurred], L.D. told him that he was 'cute' and asked him if he wanted to 'crawl into bed' with her."

The trial court had found this evidence to be inadmissible under Federal Rule of Evidence 412(a) (and that it would fail the Rule 403 balancing test even if it were not barred by the Rape Shield Rule), and the Eighth Circuit agreed. The Eighth Circuit rejected Papakee's argument that the subject evidence was not evidence of other "sexual behavior" by L.D., noting that

[t]he ordinary meaning of "behavior" extends to the manner in which a person conducts herself, Webster's Third New International Dictionary 199 (2002), and when a person undertakes conduct aimed at engaging in sexual activity, that conduct is naturally understood to be "sexual behavior." There is no reason to believe that the rule is limited to sexual intercourse or sexual contact. To the contrary, the advisory committee's notes explain that the word “behavior” should be construed to include “activities of the mind,” such as fantasies or dreams. Fed.R.Evid. 412 advisory committee's notes; see also Wilson v. City of Des Moines, 442 F.3d 637, 639-40, 643-44 (8th Cir. 2006) (concluding that female employee's statements about vibrators and male sex organs constituted “sexual comments and behavior” that was governed by Rule 412). If a person's unexpressed desire to engage in sexual activity is inadmissible, then surely her expression of that desire to another person also comes within the scope of the rule.

The Eighth Circuit also rejected Papakee's argument that the trial court's exclusion of the subject evidence violated his rights under the Confrontation Clause, finding that "Rule 412 serves important purposes of preventing harassment or embarrassment of sexual abuse victims, and the proffered evidence was of little or no probative value."

-CM