In the federal system and all states, "rape shield" rules require pre-trial hearings on whether evidence relating to a rape victim's prior sexual history is admissible at trial. For example, Utah's Rule of Evidence 412 (which parallels Federal Rule of Evidence 412) requires a defendant who intends to introduce a victim's prior sexual history evidence to make a detailed proffer of the relevance and purpose of the proposed evidence. The trial judge then holds a hearing and determines the admissibility of the evidence. But what if the defendant wants to subpoena a victim to the hearing and question her about prior sexual history as part of that determination? Is forcing a rape victim to testify consistent with the rule?
Tomorrow, the Utah Supreme Court will hearing argument on this question. Along with the Utah Crime Victim's Legal Clinic, I represent a minor victim of rape. I will argue that forcing rape victims to testify at rape shield hearings is inconsistent with the structure and purpose of such hearings. A Utah decision on this issue could be influential, since the text of Utah's rape shield rule is similar to many others.
Here is the opening paragraph from my brief for the victim, T.T.:
This appeal involves an important question regarding the proper operation of Utah's "rape shield" rule, Utah R. Evid. 412. The appeal is brought by T.T. from a district court order denying T.T.'s motion to quash a defense subpoena, which seeks to force her to testify at a rape shield hearing to be held under Utah Rule of Evidence 412. Because Utah's rape shield rule is designed to prevent rape victims from being forced to testify about sexual issues, the district court order forcing T.T. to testify should be overturned.
The underlying facts in the criminal case involve a rape charge alleging that fifteen-year-old T.T. was too intoxicated to consent to intercourse—intercourse Defendant concedes occurred. But Defendant seeks to force T.T. to be questioned by defense counsel at a rape shield hearing about her prior sexual behavior. The district court held that Defendant had made a sufficient "threshold" showing to force T.T. to testify at the rape shield hearing—but did not find specifically that the sexual behavior evidence was admissible at trial. This ruling stands Rule 412 on its head, converting it from a rule designed to protect victims from being examined about their presumptively inadmissible prior sexual history into a rule that requires such questioning. This Court has repeatedly held that a rape victim's prior sexual history is protected by "a presumption of inadmissibility," State v. Beverly, 2018 UT 60, ¶56 n.58 (quoting State v. Boyd, 2001 UT 30, ¶41). And this Court has recognized that the purpose of a Rule 412 hearing is not "to attempt discovery of evidence." State v. Blake, 2002 UT 113, ¶7. This Court should give effect to these principles and reverse the order forcing T.T. to testify at the rape shield hearing.
And here is the defendant's opening argument:
This appeal presents the question of whether an alleged sexual assault victim may be subpoenaed to testify at an in camera hearing conducted pursuant to Utah Rule of Evidence 412 (Utah's "Rape Shield" law) for the purposes of determining the admissibility of evidence proposed to be admitted under an exception to Rule 412's general prohibition against evidence of an alleged sexual assault victim's past sexual conduct. The victim in this matter unduly relies on the "presumptive inadmissibility" of the proposed evidence to argue that she should not be required to testify in a closed, in camera under Utah Rule of Evidence 412 regarding her past sexual conduct with Defendant. In response, Defendant shows that the evidence is not prohibited by Rule 412, is relevant and admissible under applicable case law, and that the district court properly determined that it should hear the testimony proposed to be elicited from the alleged victim prior to making a final ruling on its admissibility. In declining to grant the alleged victim's motion to quash the subpoena issued for her testimony at the Rule 412 in camera admissibility hearing, the district court properly balanced the alleged victim's constitutional and privacy protections as a crime victim with the Defendant's right to present a defense.
The problem with the defense position is that, if accepted, it would essentially mean that in every rape case where a defendant is seeking to introduce prior sexual history evidence, he would subpoena a victim and then examine her about the details of the prior sexual history. This would convert rape shield rules designed to keep rape victims from testifying about sensitive sexual issues into engines that would force them to testify. Interestingly, the federal rape shield rule (Fed. R. Evid. 412) originally contained a provision authorizing trial judges to take testimony on admissibility issues in rape shield hearings. But in 1994, this language in the federal rules was stripped out. Like the current version of the federal rule, the Utah rule contains no language authorizing a victim's testimony at the rape shield hearing. Instead, the rule simply gives the victim "a right to attend and be heard" at a rape shield hearing. Utah R. Evid. 412(c)(3) (emphasis added). In extending a "right" to victims and an opportunity to "be heard," the Rule's structure provides victims an opportunity to address the potential admissibility of such evidence—not suffering the potential indignities associated with being questioned by defendants accused of raping them.
If you're interested in all the briefing, I link here the victim's brief, the State's (supporting) brief, the defendant's brief, and the victim's reply. Obviously, I hope that the Utah Supreme Court agrees with my arguments tomorrow.
P.S. In referring to rape "victims" in this post, I am (of course) aware that defendants are presumed innocent of the charges against them. But Utah's rape shield rule (like many others) sweep within its protections the alleged victim in a rape case (see Utah R. Evid. 412(d)), since otherwise the rule would essentially have no effect.
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