Sexual-Assault, Child Molestation and Sex-Offense Cases

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Indiana Rule of Evidence 412 provides:

Rule 412. Evidence of Past Sexual Conduct

(a) In a prosecution for a sex crime, evidence of the past sexual conduct of a victim or witness may not be admitted, except:

(1)        Evidence of the victim’s or of a witness’s past sexual conduct with the defendant;

(2)        Evidence which shows that some person other than the defendant committed the act upon which the prosecution is founded;

(3)        Evidence that the victim’s pregnancy at the time of trial was not caused by the defendant; or

(4)        Evidence of conviction for a crime to impeach under Rule 609.

(b) If a party proposes to offer evidence under this rule, the following procedure must be followed:

(1)        A written motion must be filed at least ten days before trial describing the evidence. For good cause, a party may file such motion less than ten days before trial.

(2)        The court shall conduct a hearing and issue an order stating what evidence may be introduced and the nature of the questions to be permitted.

(c) If the state acknowledges that the victim’s pregnancy is not due to the conduct of the defendant, the court may instruct the jury accordingly, in which case other evidence concerning the pregnancy may not be admitted.

In prosecutions for a sex crime, in addition to the specific exceptions outlined under Indiana Rule of Evidence 412(a), a common-law exception has survived the adoption of the Indiana Rules of Evidence. State v. Walton, 715 N.E.2d 824, 826 (Ind.1999). This exception provides that evidence of a prior accusation of rape is admissible if: (1) the victim has admitted that his or her prior accusation of rape is false; or (2) the victim’s prior accusation is demonstrably false. Id.

Past incidents of consensual sex, except in these limited circumstances, are not permitted to imply that consent was given on the date in question. The classic sort of evidence precluded by the Rape Shield Rule concerns sexual encounters, with other men at other times offered simply to show that the victim has consented in past sexual encounters thereby giving rise to an inference that she must have consented in the incident at hand. Rule 412 prevents a generalized inquiry into the reputation or past sexual conduct of the victim in order to avoid embarrassing the victim and subjecting the victim to public denigration. Stephens v. Miller, 13 F.3d 998, 1002 (7th Cir.1994), cert. denied, 513 U.S. 808, 115 S.Ct. 57, 130 L.Ed.2d 15.  The Rule reflects a policy first embodied in Indiana’s Rape Shield Act, Indiana Code § 35-37-4-4, that inquiry into a victim’s prior sexual activity is problematic and should not be used as a defense. The policies behind Rule 412 are intended to prevent the victim from being put on trial and protects the victim against surprise, harassment, and unnecessary invasion of privacy, and, most importantly, to remove obstacles to reporting sex crimes. See id.  Balanced against these policy considerations is the defendant’s right to present relevant evidence to finder of fact.

Rule 412 does permit evidence of the defendant’s past experience with the victim. However, the Rule does not permit a defendant to base his defense of consent on the victim’s past sexual encounters with other persons. An allegation of prostitution or general promiscuity does not affect this analysis. It is “intolerable to suggest that because the victim is a prostitute, she automatically is assumed to have consented to have sex with anyone, at any time.” United States v. Saunders, 943 F.2d 388, 392 (4th Cir.1991), cert. denied, 502 U.S. 1105, 112 S.Ct. 1199, 117 L.Ed.2d 439 (1992); see also Tague v. State, 539 N.E.2d 480, 482 (Ind.1989) (holding that the trial court did not err in excluding the evidence of possible molestation of the victim by a person other than the defendant and “[v]irginity or the lack thereof has absolutely nothing to do with the crime of child molestation”); Beckham v. State, 531 N.E.2d 475, 477 (Ind.1988) (addressing a situation in which the defendant offered to prove the fact that the seven-year-old victim reportedly told his mother that he had previously been molested by another person and the similarity between the physical acts in the two instances and holding that the trial court properly excluded evidence of a prior molestation committed by a different person); Baughman v. State, 528 N.E.2d 78, 79 (Ind.1988) (holding that evidence of prior molestation by a different person was the type of evidence which the legislature deemed should be excluded); Parrish v. State, 515 N.E.2d 516, 519-520 (Ind.1987) (holding that the trial court properly refused to permit the defendant to question the nine-year-old victim as to whether he had been sexually abused in the past, because Indiana’s Rape Shield Statute shields the victim of a sex crime from a general inquiry into the history of past sexual conduct).

Indiana’s Rape Shield Rule has been held to not violate the Sixth Amendment right of compulsory process to present witnesses in support of one’s defense, and has repeatedly been held facially constitutional. Moore v. Duckworth, 687 F.2d 1063, 1067 (7th Cir.1982).  Nonetheless, the constitutionality of Rule 412 application to preclude exculpatory evidence remains subject to examination on a case-by-case basis. Tague v. Richards, 3 F.3d 1133, 1137 (7th Cir.1993).  A number of  jurisdictions note that a rape shield statute or rule generally makes a victim’s sexual history irrelevant. State v. Crims, 540 N.W.2d 860, 865-69 (Minn.App.1995), rev. denied (1996) (see cases cited therein).  Admission of evidence may be constitutionally required where the evidence is offered not to show the victim’s consent but to establish that an injury could have been inflicted by someone other than the defendant. See Tague, 3 F.3d at 1136-38. Admission of such evidence may also be required when the trial court restricts a defendant from giving his own account of the events at issue. Cf. Stephens, 13 F.3d at 1017   (Coffey, J., dissenting).
The Sixth Amendment may be impacted when a defendant establishes that the victim engaged in a uniquely similar pattern of sexual acts. Cf. Jeffries v. Nix, 912 F.2d 982, 987-88 (8th Cir.1990)  (essentially finding a victim’s sexual history irrelevant in the absence of compelling evidence of modus operandi); People v. Sandoval, 135 Ill.2d 159,142 Ill. Dec. 135, 147, 552 N.E.2d 726, 738 (1990) (prior pattern exception applies to the admission of certain evidence which shows an individual’s unique “signature” for purposes of establishing identity). Likewise, an argument can be made that additional exceptions similar to those found under Indiana Rule of Evidence 404(b) for  “proof of motive, intent, preparation, plan, knowledge, identity, or absence of mistake or accident” could be used to admit evidence which would otherwise be inadmissible.

Finally, even when evidence of a victim’s past sexual history does fall within one of Rule 412’s exceptions, it is still subject to exclusion under Evidence Rules 401 and 403. Anytime the  probative value is “substantially outweighed by the danger of unfair prejudice” such evidence may be excluded under Ind. Evid. R. 403.

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on September 19, 2013, in Uncategorized. Bookmark the permalink. Leave a comment.

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