The Mission Creep of Rape Shield Law
[H]is relationship with his older [13-year-old] daughter was fraught with difficulties. He constantly argued with her about what he considered her unacceptable behavior and threatened to send her to a "brat camp" if she continued to disregard his admonitions.
Things didn't improve,
Their contentious relationship lead [sic] to an incident in July 2006, when defendant sought police assistance to locate her since she had not returned to her mother's home the night before. After the police picked her up at the home of a 16-year old boy, she and defendant had a heated telephone conversation. When the phone call ended, she informed her mother that her father had sexually abused her. The younger daughter later made a similar revelation, leading to defendant's arrest.
That's the backdrop to the Court of Appeals decision in People v. Halter, affirming the defendant's conviction after a bench trial of first degree sexual abuse, second degree rape, criminal sexual act in the second degree and endangering the welfare of a child. On appeal, the defendant argued that the court precluded his presenting a defense because of evidentiary rulings based on the rape shield law.
On appeal, defendant claims that he was deprived of a fair trial because several of the trial court's evidentiary rulings prevented him from adequately establishing his older daughter's motivation to fabricate the charges. In particular, he asserts that the trial judge erred in precluding (1) cross examination of the older daughter regarding the purportedly sexual nature of her relationship with the 16-year-old boy at whose home she was found; (2) cross-examination about her sexually provocative postings and photos from her MySpace account; and (3) evidence of her tendency to wear what defendant considered to be inappropriate clothing for her age. Defendant claims that this evidence was essential to explaining the increasing discord between himself and his daughter and that its exclusion did not allow him to present a complete explanation of his defense.
The majority of the Court affirmed the evidentiary rulings, noting that the rape shield law existed to prevent the admission of evidence, such as provocative dress or prior sexual contact, which had historically been used to fend off claims of rape, as this evidence "rarely elicits testimony relevant to the issues of the victim's consent on credibility, but serves only to harass the alleged victim and confuse the jurors" (People v. Scott, 16 NY3d 589, 594 ."
The Rape Shield Laws came about at a time when recognition that rape wasn't about loose women looking like floozies giving up their right to refuse sex, but about a particular wrongful act, and the right of every woman, regardless of the height of their skirt, to say no.
But like so many rules that assume the mantle of "black letter," there is a tendency to remember the rubric and forget the rationale. Rape shield laws pertain to consent, not credibility. And in this case particularly, there was no claim by the defendant that his 13-year-old daughter consented to sex, even if that was legally possible, but that nothing sexual ever happened. Rather, the child lied to rid herself of a father for whom she felt no love and who threatened her lifestyle. This put her lifestyle in issue.
In dissent, Judge Eugene Piggot, who is not generally viewed as particularly friendly to the defense, recognized what the majority missed, that the Rape Shield Law was never intended to be "inelastic."
[T]he statute provides that a trial court may determine, in its discretion, to admit evidence of a victim's sexual conduct if it is "relevant and admissible in the interests of justice" (CPL § 60.42 ). It may do so "after an offer of proof by the accused outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination"
The facts of the Halter case teed up the nightmare scenario, where a father was accused of molesting his daughter and there was no direct way to prove the negative, that it never happened, even though there was strong reason to believe that he was innocent. Yet the trial court's refusal to allow the defendant to use what little he had was dismissed with a cursory "it's inadmissible." Move along, defense.
The case against Halter was built solely on the testimony of his daughters, with no forensic evidence behind it. The basic "she said, he said," scenario, coupled with the prejudice favoring a child and against an adult, favoring a female and against a male. While this doesn't mean it couldn't happen, it also doesn't mean it did.
Also dissenting, Judge Robert Smith laid out the arguments militating against guilt, making a formidable presentation. Most telling was this description:
The older complainant asserted, in substance, that on three occasions defendant attacked her sexually without warning. On two of the occasions, his alleged conduct in doing so seems to have been almost insanely risky: It took place in a room where several other people were asleep. The record shows that, as defendant well knew, the older complainant was not a meek or submissive child. What made him think she would not cry out, and awaken the others?
If a defendant argued that this could happen in some alternative case, there is little question that it would be viewed as "insanely risky" and rejected as a laughable position. Yet, when it's the prosecution's claim, notwithstanding the burden of beyond a reasonable doubt, this "insanely risky" scenario is magically transformed into accepted fact, because the alternative would be to disbelieve a female child. This just isn't done anymore.
The point isn't that rape shield laws are bad, or that we should return to the good old days where two independent witnesses were required to confirm a rape occurred. Rather, we have gone so far off the deep end the other way that it's nearly impossible, no matter how insane the contentions, to defend against the facile accusation of rape or sexual molestation. While we certainly want to protect children from this, convicting the innocent protects no one.
There is an excellent chance that the Court of Appeals affirmed the conviction of an innocent man. Statutes enacted to prevent the smearing of women for their dress or unrelated conduct has now crept so far into the law as to preclude a defendant from fighting false charges. Are aficionados of an absolutist approach to the rape shield law pleased by this? Is any woman, any child, saved by the conviction of an innocent man?
H/T Don Thompson