Robert Halter was a divorced father whose ex-wife had taken his daughters and moved away, leaving him without much contact. They eventually moved back to New York, and Halter was allowed to see his children on weekends. But what he found disturbed him.
[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 [2011].”
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 [5]). 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
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Excellent post, Scott. I’m not as convinced as you that Halter may be innocent — I have no real sense, one way or the other. I’ve read the opinion but without being present for the testimony itself, I can’t judge — but I’m troubled that the evidence wasn’t admitted for purposes of challenging the older daughter’s credibility.
In addition to the grounds cited by the court, evidence of the girl’s purported sexual relationship with a 16 year old boy would go to her knowledge of and ability to describe the details of the alleged abuse by her father, wouldn’t it? Particularly when the complainant is a minor who describes the nature of the alleged abuse “in detail,” the defense needs a way to explain how she may have gained this knowledge. Under such a scenario, the fact that she may have had consensual sex with a peer could be relevant to establishing her knowledge of such acts and, thus, her lack of credibility; in this way, it would clarify the defense theory for jurors, rather than “confuse” them.
Similarly, her MySpace photos, postings, and arguably provocative attire would go toward establishing the specific — rather than general — source of the conflict w/her father, which goes to her motive to lie about sexual assault (as opposed to physical assault, of which she wrongly accused her mother’s boyfriend) in order to “get back at” him. It could have been argued that demonstrating the “sexualized” behavior of the complainant and the possibility that she considered her father to be attempting to thwart the free expression of this sexuality helps explain why she would wrongfully accuse him of sexual abuse.
In any event, this all seems like very basic interpretation of the rules of evidence. It is unfortunate but not surprising that under the abuse of discretion standard, the Court of Appeals found that the judge had ruled reasonably.
The broader issue, as you discuss, is the difficulty of litigating claims of rape in ways that preserve the defendant’s rights while also not shaming or harassing the accuser. Rape Shield laws are important, but they cannot be invoked in such a way as to prevent the accused from presenting his defense. The evidence of prior sexual activity with the boyfriend and her self-presentation as a sexualized being was relevant not to show that “she was asking for it” or that “she was a slut and consented to sex,” but to challenge her credibility.
Thanks for posting.
I’m less convinced of his innocence than I am of his not having been proven guilty beyond a reasonable doubt, even in the absence of the disputed evidence. But when a defendant is denied the opportunity to present material evidence to challenge credibility based on a rubric disconnected from the rationale, he’s suffered a significant constitutional infirmity.
Yes, absolutely. It serves no one. Do you know if evidence of her prior false accusation against the mom’s boyfriend was in evidence? I couldn’t tell from the opinion.
I don’t know any more than what’s in the opinion. The 4th Department decision was brief and uninformative.
Why would someone charged with first degree sexual abuse, second degree rape, and criminal sexual act in the second degree ever opt for a bench trial? That’s some very serious charges, not homeboys speeding ticket.
Given the current atmosphere, the charges are so inflammatory that some defendants feel they can’t trust a jury to be able to see beyond them and consider the evidence.
It does serve those who want to make rape a simple “the accusation is all the proof needed” issue.
Reading the actual opinion gave a very different view then your post. You make it sound like the trial court excluded all of the evidence of the conflict between them, but as the opinion clearly lays out that isn’t so.
The trial court allowed him to lay out that there was conflict over the Myspace content that he found horrible and argued with her about. It neglected to allow him to discuss precise images he had a problem with.
The trial court allowed him to discuss the conflict over the clothing that he perceived as inappropriate and that they argued about it.
The trial court allowed him to introduce that she had not come home that night, that the police found her at a teenage boy’s house, that they found her in his bedroom and that she and him had a heated argument about it.
All of this quite sufficient to establish the motive the father wished to advance. This is rape shield laws working just fine, the father established the friction within the relationship and the potential motive, what he wanted to do was introduce additional extraneous information about how revealing her clothes were and how suggestive her Myspace page was, and how she was having sex with the boy they found her with.
Now, the first dissent makes a very good point that the trial judge did not create a good record for appeal, but I disagree that it amounts to reversible error. In my view the defendant was able to fully advance his rationale for the daughter lying and all relevant evidence, and it didn’t fly. I don’t see any facts present here that give me a particular reason to doubt that.
You share the view of many non-lawyers (and civil lawyers) who don’t have a firm grasp on the concept of a constitutional right to present a defense in a criminal case. The right isn’t “close enough” or as much as a judge (or some unknown guy named Jeff on the internet) thinks is sufficient. If it was a matter of popular vote, there would be no constitutional rights at all, as most people have no better grasp than you do.
If it was a matter of popular vote, there would be no constitutional rights at all, as most people have no better grasp than you do.
Some of us argue that since the plain meaning of “shall make no law” has been magically re-interpreted to mean “shall make no unreasonable law”, you’ve already lost that argument.
For example – ‘Freedom of the press’ only applies to legacy media corporations, not to everybody else and certainly not to non-legacy media corporations. ‘Free speech’ doesn’t include speech that insults someone’s religion (or race or gender or weight or looks or _____.) ‘Due process’ doesn’t apply wherever the President says national security issues make it inconvenient. ‘The right to keep and bear arms’ doesn’t actually mean you can, you know, keep or bear arms. And so on.
‘Constitutional rights’ do seem to become, over time, a matter of – not popular vote – but majority opinion. Specifically SCOTUS majority opinions.
Some people feel constrained by the barest of tenuous logical connections. Some don’t.
I’ve had several clients who have asked me to ask for a bench trial. I wonder if it really is 6 of one blah blah blah these days but I am not convinced yet.
I am working on a child sex appeal and this issue came up during preliminary discussions – let’s try to get into the fact that the accuser made the accusation after she’d already been sexually active so she knew and could describe sexual acts that she would not have known about when she was younger because they did not happen.
I guess we just have to keep trying.