Today the Utah Supreme Court agreed with my argument that a defendant cannot compel a rape victim to testify at a "rape shield" hearing. Instead, the defendant must establish (if he can) the admissibility of prior sexual history evidence in other ways, such as a proffer of anticipated testimony and legal argument. The Court's ruling solidifies the protections offered to victims under Utah's Rule of Evidence 412. And because Utah's rule uses the same language found in the federal rules and many state provisions, it will serve as a valuable precedent in other cases.
I previously blogged about the case here. In a nutshell, 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?
In December, I argued the case to the Utah Supreme Court on behalf of a victim, T.T., explaining that the rule does not allow defendant to compel victims to testify at such a pre-trial hearing. Today, the Utah Supreme Court agreed with my position:
