University of Kentucky UKnowledge
Law Faculty Popular Media Law Faculty Publications
4-1987
Confronting Rape Shield
Allison I. Connelly University of Kentucky College of Law, [email protected]
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Repository Citation Connelly, Allison I., "Confronting Rape Shield" (1987). Law Faculty Popular Media. 25. https://uknowledge.uky.edu/law_facpub_pop/25
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Notes/Citation Information Allison Connelly, Confronting Rape Shield, 9 The Advocate Newsletter 13 (Apr. 1987).
This newsletter is available at UKnowledge: https://uknowledge.uky.edu/law_facpub_pop/25 GOV/T PUBS DEPT.
In 1974, ~hls Depa r1'o!e n~, wl~h Tony Wllh ol~ as I~ s dlrec~or, was known as the Office of Public Defender. A ·comlx· was produced ~o explain I~ s role. In the course of the nex~ 4 Issues, we will reprln~ l~ to.en ' ourselves of our importan~ mi ssion. THE Vol. 9 No.3 A Bi·Monthly Publication of the DPA April, 1987 AfTER A. WRI5 DIIf AT\\'~J"C£ 1AAii
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The Advocate Bulk Rate U.S. Pos1age Department of Public Advocacy PAID 151 Elkhorn Court Frankfort. KY Frankfort. Kentucky 40601 40601 Permit No. 1
iUN 8 REm The Video Debate Rages: Chief Justice Stephens responds to Judge Lester
ADDRESS CORRECTION REQUESTED Also In This Issue: Schizophrenia
-36- after again receiving and waiving BURDEN OF PROOF effectively negate a finding of the Post-Conviction "'iranda rights. Martin .!.!. Ohto mental element of the aggravated 40 CrL 3297 murder Charge. In Patterson 2 .!!!!.. The Issue before the Court was (February 25. 1987) York, 432 U.S. 197 ( 1917) , the Law and Comment whether Springs' waiver of his Court he I d that a defendant may be Fifth Amendment rights was i nva lid reQuired to prove an affirmative since the police refrained from The issue before the Court In defense if the affirmative defense telling him at his inItial interrer Martin was whether Ohio could place does "not serve to negat I ve any gat Ion that they intended to Ques on the defendant the burden of facts of the crime which the state Alison Connelly t ion him about the murder. The proving her defense of self-protec is to prove in order to convict of Confrontlng Rap. ShIeld longer be justified; consent to the vict;." it is an impenetrable Court held that It was not. n I WI e tion at her trial for "aggravated murder." The majority in Mar"tin sexu81 re lat ions with partners of w811 that denies one accused of hold that a suspect's awareness of murder ." The i 5SUS arose because concl uded that the above language I. Introduction onels choice is not an indica'tion such a cr Jme from present i ng even all possible subjects of Ques of an apparent uoverlapll in Ohio1 s in Patterson did not benefit Martin of whether the complaining witness critical evidence. tioning in advance of interrogation definitions of aggravated murder because the state court's instruc would consent to sex with the is not relevant to detennining and sel f-protection. A conviction tions "did not require Mrs. Martin woman applaud Kentucky's defendant. In response to this need Unlike the federal rule, Fed. R. whether the suspect, vo I untar i I y, of aggravated .,urder required that to disprove any element of the As a for reform and our changing Evid. 412, which reQuires the knowingly, and intelligently waIved the accused have acted "purposel y, offense with wh ich she was passage of a rape shield law; as a criminal defense attorney I deplore society, most states passed rape admission of chastity evidence, if his F i Uh Amendment pr iv i lege. and with prior calculation and charged. It Just jces Powsl , , shield laws that limit or prohibit "constitutionally required," Ken Justices Marshall and Brennan design," while a finding of self Brennan, MarShall, and Blac""'un fts weaknesses. What was once a a defendant's ability to present to tucky's law does not contain such a dissented based on their vi .... that protect ion required that the ac dissented • humi I i at i ng exper i ence for the the Jury, ev idence of the victim's judicial safeguard. Surely, such a "a suspect's decision to waive th is cused not have created the s j tua victim In a sex offense is now an past se"ual history with third blanket exclusion that fails to FI Uh Amendment! pr iv i lege wi II t Ion resu I t I ng j n the death and unnecessary denial of a defendant's right to present an effect i .. e parties. ~w under Kentucky law, af ford the defendant even the necessarily be influenced by his that she bel i eved she was in II immi linda West such ev.idence is automatically opportunity to establ ish the rele awareness of the scope and ser ious nent danger of death or great Assistant Public Advocate defense. inadmissIble so lely because it vance of the evidence, despite the ness of the matters under ;"vesti bod i I Y harm." Proof of the se I f Appellate Branch involves a sex offense instead of fact it may be more probative than gation.1f protection defense would thus (502) 564-5234 Rape sh ield was born of Victorian ".,ral ity and an abusive criminal S00l9 other cr ime. I nstead of prejudicial in its impact, cannot Justice system that put the victim de81 jng with the abuses engendered be reconciled with the s ixth amend LEXIl'GTON HERALD-LEADER on trial instead of the defendant. by unbridled JUdicial discretion, ment. Surely, such a blanket exclu we are faced with an Inflexible sion will sooner or later prohibit Salurday. January 24. 1987 A6 Often, the comp I a I n I ng "i tness was forced to defend attacks on her legislative mandate that deprives the I ntroduct ion of a compel ling the trial judge of all discretion. set of facts that demand the Jury' s NATIONAL CRIMINAL chast i ty as her sex life was pa 6th Amendment outweighs raded before the jury by a defen hearing. To say that sexual history DEFENSE COLLEGE dant attempting to prove she con The Kentucky legislature, in its i s irrelevant begs the Question. desire to protect children sented. Such evidence was deemed zea I to protect the vi ct ims of sex The Question i s whether such evi ODe at _ righlS is outliDed in !be offenses, enacted a statute that dence is relevant in ~ instance; KenllJCty Attorney General Do,iII Jury Sa1ection relevant by the specious logi c that AnnstttrIg has gone aD the ....r UI the Sixth Ametldme!Il. whicb says, "!JI aD whether the sh i eld law prevents the U.S. SUplome Coon _ bis CODt .... ~ proseaaiaIs. !be accused 1 f s he consented once" she'd con abso I ute I y exe I udes a II ev i dence of shaD enjoy !be rigItl ... to be CODfnlot· In8titute lion that doleodanlS in child abuse sent again, and If she didn't con "sex:ua' conduct and habi tsll between defendant from introduc i ng such cases do DOl have the rigbt to conIroct ed _ !be .ntnesses ~ bim ... " their I
-14- -15- IWle conclude that the whether or not the Kentucky rape major constitutional flaw in Ken sh ield law protects victims from exa~ples It lustrate this point. For While evidence regarding the past shield statute violates a defen tucky's rape shi eld l aw. While such state's desire that Ithe embarrassment and humi Ilatfon. In Instance, constitutional questions sexua I mi sconduct by the accused juvenllel fulfill his public dant's right to cross-examine a situation will arise only in the other ..ards. the rape shield law arise where there i s evidence of a with third parties is admissible In duty to test ity free frOt'll "itnesses and cOOlpel testImony. unusual case, the legislature can protects the victim's right to pattern of prom! scuous sexua I some instances, Kentucky's rape embarrassment and with his Such an analysis requires first, not establ i sh a bright line rule personal privacy in the area of conduct or prost i tut ion under shield law absolutely bars the reputation unblemished must the threshold determination ot that paints relevance in blacks and consensual sexual act Ivity. Simi sl ~il ar circumstances to the case admission ot such evidence es to fall before the right of the whether the evidence offered by the whites. By definition, the concept larly, the statute a ids in the at hand. Other constitutional the v!ctl.. and third parties. defend~nt is relevant, and second, of rei evance must be viewed on a petitioner to seek out the truth find j ng process by exc I uMng questions arise when the defendant Pendleton v. Commonwealth, Ky. , 685 truth in the process of a balancing of the defendant's need continuum. At one end of the scale evidence that Is unduly infl"",ona seeks to adm't the wi tness' pr ior S.W.Zd 549 (1985) held: defending himself. for the evidence jn a specific fact the evidence is clearly irrelevant, tory and prejud ieial. It has been sexual history to show bIas, preju situation versus the state Interest ~. at 320. at the other. c learly relevant. It stated that jurors react emo d Ice. or undue motive that wou I d Evidence of independent in exc luding the evidence. is the function of the t 'rjal judge tionally to evidence of a com affect the credibility of the sexual acts between the Thus. Oavls stands for the general to determine t his relevance on a plaining witness' past sexual witness' testimony that she did not accused and persons other proposition that a defendant has a case-by-case basis, excluding even history. Such evidence distracts consent. See State :!..!... De I auder, than the victim are adllis right under the confrontation relevant evidence for pol icy the jury frail determining whether ~. sible if such acts are simi clause to expose the bias and reasons .. bere its pro bat i ve val ue the prose cut ion has proved the lar to that charged and not interests of a wItness, and that a Is outweighed by its prejudicial crime because the evidence preju Several rape shield statutes In too remote in time provided state can't constitutionally re effect, and admitting such evidence d ices the Jurors toward the prose other states recognize as relevant, the acts are relevant to strict that effort. where Its probative value outweighs cuting witness, and so. affects the evidence of prostitution or indjs prove intent, IDOtlve or a the prej udici al impact. Yet, Ken outcome of the tr lal. However, the cr imlnate sexual conduct. These common plan or pattern of While In ChMlbers the state in tucky's law does not contain this state also has an interest tn statutes admit such testimony activities. terests were advanced by a common j ud lci al machan ism. protecting the defendant from false following "n in camera hearing to ~. at 552. law rule of evidence, and in Davis accusat ions by untr uthfu I wi t assess the probat i ve va I ue of the a statutory rule, in United States IV. Due Process Balancing nesses. In its aboot-face concern evidence versus its prejudicia I Indeed, under Ke ntucky's statute, ~ lind Rape Shield Nixon, supra., the interest was for the complaining witness, Ken effect. See foil nn. Stat. Ann.. ! the defendant i s prohibited from constitutionally based. tucky has failed to sufficiently 609.347; Neb. Rev. Stat. !! 28-321 introdUCing evidence of prostitu Fraraed in the context of the protect, as the Constitution re to 323; and Fla. Stat. Ann .. ! tion by the complaining witness, or Chambers I ine of cases, the Ques In United States v . Nixon, the quires, the one accused of the 794.001(2). Indeed, a Minnesota other testil1lOny to show the witness Presid ent refused to del iver tapes tion becomes whether or not the crime. case applied the Com8On evidentiary had engaged in sexual practices prior sexual hi s tory of the CClGl sought by the Watergate prosecutor ~------_____ standard of "comrnon sch...... or pi an" with persons simi lar to the defen plaining witness may ever be proba by asserting that they were In Davis v. Alaska, supra, the in a sex case. State :!..!... Hi II, dant under simi lar circlJlllstances. Clearly, in ~st cases, evidence of t he of an i ssue that j s mater la I privileged preSidential communica Supreme Court recogn Ized that the Minn., 244 N.W.2d 731 (1977). This distinction cannot be consti a complaining witness' prior sexual to determining the gul It of a tions. The Supreme Court, In juven ile shi eld law was a valid tutionally justified. Even when one history with third parties wi II be defendant charged with a sex crime. resol.lng this constitutional legislative statement of publ ic '1 rules of evidence are -to be examines the s t ate' s interest in showdown, weighed the preSidential jrre' evant,. but not rnevery case. Certainly, there will be some cases pol icy. However, this po licy was llniformly applied, what distin protecting a sex v I ct im by keepl ng Professor Lawson states that "an where chastity ev idence is directly priv ilege of confidentiality forced to yield in the face of a guishes a pattern of promiscuous potentially prejudicial information Item of evidence--ao evidentiary related to .. hether the complaining aga I nst the Watergate defendants' more compelling pot icy; the defen sexual conduct on the part of the from the Jury, the state's genera I fact--is relevant when it renders a witness consented to a sex act with s ixth amendment rights to con tron dant's right of cross-examination prosecuting witness, from the interest cannot preva) I where the "",terial ulth""te fact more proba the accused. After dete~in'ng that tatlon and compulsory process. ~ to show possible biases, preju common law doctrine that a ll ows the defendant's need in the evidence is at 711. The Supreme Court held that ble or less probable th,," It ..auld such evidence is relevant and would dices J or ulter ior moTives. Indeed, introduction, against the defen specif ic and legitimate. Oavis :!..!... the President's "weighty" interests be without the rt8lll." R. Lawson, aid in the fact-finding process, under Davis, the state's interest dant, of pr ior bad acts or cr imes Alaska, supra; U.S. 2 Nixon .. in confidential ity " ust yield" to The Kentucky Evidence Law Handbook, one lIu st look to the reason for In exclusion mu st be suff icientl y to show a common scheme or pi an, ~. the rights of the Watergate defen ! 2.00 (1984). See al so 0'8r len :!..!... which the evidence is offered to compelling and probaTive, and the motive, or intent. Indeed , thi s i s Massey Fergerson, In c., Ky ., 413 detemine whether the defendant's dants. ~. The Court stated that value of the offered ev idence the evidentiary rule In Kentucky. Another examp I e where the rape the President's Interest was merely S.W.2d 891, 893 (1967). It is right to present a fu ll defense sl ight, to Justify the exclUSion. Ev Idence law i s praml sed on the shield law clearly effects a defen "general In nature," wI1 i Ie the impossible to detenoine statu overrides the state's policy of notion th"t rules of ad,. i ssibll ity dant's right to present probative defendants Interests were "speel fic torily, the thousands of circum excluding such evidence. One can Imagine several fact pat do not develop differently for each evidence to the jury is premIsed and central to the fair ad judi stances that may arise where the terns where the prior sexua l his substantive cr·ime, -but rather focus upon the holding in Davis v. cat Ion of a part icu I ar. .case in prior sexual history of a com The art lcu I ated po Ilcies that tory of the complaining witness on issues common to all tria ls. Alaska,~. Davis held that the s upport the rape shield law are the administration of justice." plaining wi"tness may be relevant, with third pertles would be crucial Yet, Kentucky' s rape shield law confrontation clause was violated ~. and where the probat I ve va I ue of ""'"y. The law protects the dignity at trial. One can easily construct sets a stricter standard of admis by Alaska's refusal to permit the of rape victims, and thus, encour the evidence outweighs its prejudi scenarios that would require the s ibility of evidence on the consent defense in cross-examining a cru With these cases as constItutional ~ cial effect on the jury and the ages the report ng and prosecut ion admission of s uch evidence on issue than it does on the issue of c .ial witness "to show the existence foundation, cri~s. one ust Question prosecut I ng witness. This Is the of sex Furthermore, the constitutional grounds. A couple of forced intercourse. of possible bias and prejudice."
-16- -17- 6th Circuit Highlights ~., at 317. In a later case, State teral and may always be proved to truthful. Nevertheless, the Ken ~ fbward, N.H., 426 A.2d 457 enable the jury to estimate tucky rape shield law ",ust be ( 1981 ), the New flaOlpsh i re Supreme credibility. It OI ay be proved by constitutionally challenged in its Court held that a defendant accused the witness' own t estl~ny upon abso lute prohibition of evidence of of statutory rape must be given the cross-examination or by Independent the prosecuting witness' sexual QIlportun i ty to demonstrate that due evidence. relations with third parties. The process requires the Introduction Id.at 285 Kentucky courts OIu st be given the of a victim's prior sexual history apportu,,; ty to construe the statute Donna Bo~'C'e I n a part icu I ar case, where the so as to uphold the constitutional probative value outweighs the See also Cl ark ::!..!.. ComlllOnwealt~, rights of the defendant while BATSON HEARINGS BLIND STRIKE PEREMPTORIES preJ ud i cia I effect on the com Ky., 386 S.W.2d 458 (1965). creating the least possible inter plaining witness. Relying on Dav) s ference .ith the legislative pur In United States '!..:.. Davis, F.2d The 6th Circuit found ro Sixth Amelrl ~ Alaska, supra., the Howard court pose ref I ectad in it. This can be 40 cr.L. 2358, 16 S.C.R. 3,8 ment violation in the blim strike stated, done by utilizi.ng traditional ( '987), the 6th Circui t reviewed the method of exercisin:J peremptory chal retevancy ana lysis, ~.e., whether procedure one federal trial court lerqe in United States ~ Mosely, __ In seeking out the truth in the offered evidence "",kes the followed in dealirq with a Batson F.2d , 40 Cr.L. 2364, 16 S.C.R. 3, defending hiOlsel1, the defen truth or falsity of the disputed challerqe. Durirq voir dire, defense 11 (1987). Under the blim strike dant mus t be afforded the fact ..,re or less like I y. I f the counsel objected to the goverrment's method, both the defense am prose right to present evidence and evidence is relevant, the Davis ~ use of peremptory challerqes to re cution exercise their peremptories cross-examine witnesses In an Alaska, supra, balanCing tast mu st move black jurors. When the defense simultaneously without benefit of effort to iOlpeach or dis be ... p loyed to weigh the state's established a prima facie case of ra knowirg who the other side is strik credit their credibility, and interest that rape shield was cially motivated exclusion of blacks irg. The Court noted that sirce the to reveal possible 'biases, designed to protect against the from the jury panel, the trial court true nature of the peremptory chal prejud Ices, or ulterior probst j ve va I ue of the exc t uded allowed the prosecution to explain lerqe right is to reject rather than motives of "the witnesses as evidence. We !DU st continually the reasons for its exercise of t h e se lec t po te ntia I jurors, the mere they "",y rei ate d I recti y to Question the statute's failure to ch alle rqes in an in camera heari rq • simultaneous exercise of challenges i ssue.s or personalities in provide the defendant with a proce After the heari rq, the court corclud does not impair the accused's rights the case at hand. dural mechanism or QIlportunity to ed that the prosecution was justified under the Sixth Amendment. ••• Strictiy construed, our demonstrate before the tri a l Judge in exercisirq its challerqes but state rape shield statute that due process requ ires the would not disclose on the record what ABSENCE OF COUNSEL prec I udes an accused frolO These are on I y two examp I es _here admi ssion ot pr ior sexua I history transpired duri rq the heari rq. mak i ng any show i ng that the the constitutionality of Kentucky' s ev ldence because the pro bat ive Counsel for one of three jointly victim's prior sexual acti rape shle!d law is subj ect to value in this case outweighs its The Sixth Circuit held that the right tried co-defendants experienced an vity has a bearing on any of cha I I enge. By focus ing on the prejudicial impact em the com to be present at trial, under the unexpected schedulirg conflict durirrj these factors. purpose for ..hich the evidence is plaining witness and the Jury. Constitution am federal rules, was the presentation of the prosecution's ..!..!. at 460. offered, one estabJ ishes the rele Un I ess and unt i I such a procedure not violated by the exclusion of the case. As a result of the conflict, vance of the test lmony as "e I I as is established by the Kentucky defemants and their counsel from the counsel '.r.iS unable to cross-examine The Howard court found the statute probative value or potential preJu courts, the sixth a ... ndment rights in camera hearirg in which the the prosecution's first witness (the constitutional on its face, but dice to the truth fj nding process of a cr Jm i ns I defendant accused of prosecution explained its peremptory victim) but informed the trial court unconstitutional in Jts app l i itself. Pobreover, by delDandlng an a sex crime will always be at risk. challen:Jes. The Court stated that he would be satisfied with any cation. ~ ~ hearing before the trial In narrow1 y frami ng the issue to orce the defense had established a cross-examination conducted by co court, on ev idence automatica lly the trial judge, through a written prima facie case of racial motivation c'lefendant's counsel. The client's Kentucky courts have also demon excluded by t he s hield statlJte, one motion, and requesting an in ca~ra sufficient for the trial court to objection to proceedirq in her strated a sensit ivity to evidence can set the stage for appel late hearing on the relevance of such make i IXIUiry of the prosecutio n, counsel's absence am her request for whi cll tends to establ ish bias, review on issues ~ith great consti evjdence, we can preserve tor there was nothi I'lJ more for the a new attorney were denied. The Sixth prejud ice or IDOt i ve to l ie. In tutional ilOpl jcations. appellate review the aLJtomatic defense to do and their participation Circuit held that defense counsel's Parsley::!..!.. eo..rronwealth, Kyo 306 exclusion of evidence that could was no lorger necessary for the trial absence from the trial proceedi n:J s S ..... 2d 284 (1957), the court V. Conclusion change the outCOll>9 of t he tact court to make its determination. wa.s per se prej udicial am: rot observed, finding process. subject to a harmless error analysis. As a general proposition, the The Sixth Circuit limited its The interests of a witness, frequency of the COIOp la i n j ng wi t Alii son Connel I y decision to this case alone and Donna Boyce either friendly or un ness· prior sexual experience does Assistant Pub lic Advocate expressly declined to establish Assistant Public Advocate fr i end I y, in the pros9Cut Ion not normally show a tendency to Nor·thpoint Office general procedures to be followed Major Litig ation Section or in a party is not colla- consent or an inability to be (602) 236-9012 (ext. 219 ) when a Batson challen:Je arises. (502) 564-7340
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