We are not unmindful of the very personal nature of the information sought from Carlisle regarding her past conduct. Nor do we intend to suggest that a plaintiff with a promiscuous past could not feel the same shame and humiliation as someone without such a past if involuntarily subjected to sexual harassment in the workplace by someone in a position of authority. The fact remains, however, that, in an appropriate case, the relationship between a plaintiff’s past sexual conduct and the question whether the defendant’s conduct was consensual and the extent to which the plaintiff was injured thereby will be questions for the jury. Moore should not be prevented from presenting his theory of the case by a blanket assertion that Carlisle’s past conduct could not have any bearing on the issues raised in this case.
The Supreme Court of Alabama, Ex parte Carlisle, 2009 WL 1875566 (Ala. 2009).
Here are the details of Carlisle, and I will let readers decide for themselves whether they agree with the court.
In Carlisle, Laura Kay Carlisle worked for a veterinary clinic operated by Atmore Animal Hospital, LLC from 2000 to 2005. During her employment, Carlisle was supervised by Thomas G. Moore, a veterinarian and a managing member of the clinic.
In September 2006, after she ceased working for the clinic, Carlisle sued Moore and the clinic; she alleged claims of assault and battery, invasion of privacy, the tort of outrage, and negligent supervision and/or retention. Carlisle alleged that Moore had inappropriately touched her, that he had directed sexually suggestive and offensive remarks and gestures toward her, that he had openly displayed his genitalia to her, and that he had made inappropriate sexual references in her presence during her employment with the clinic. Carlisle further alleged that, as a result of Moore’s actions, she suffered mental anguish, emotional distress, shame, humiliation, embarrassment, and lost wages.
During a subsequent deposition of Carlisle, defense counsel began asking her questions about whether Moore and she had engaged in sexual relations. After Carlisle answered “no” to each question, defense counsel “began what apparently was to be a series of questions regarding Carlisle’s sexual history generally.” At that point, however, the parties agreed to adjourn “to allow Carlisle to file for a protective order to prevent Moore from asking her questions about her sexual history.”
Carlisle eventually filed a motion for a protective order seeking a prohibition on any questions concerning her sexual predisposition or past sexual conduct unless such conduct either involved Moore or occurred while Carlisle was on duty at the clinic’s facility. The trial judge denied this motion, eventually prompting Carlisle to petition the Supreme Court of Alabama for a writ of mandamus. And if that court were hearing Carlisle’s case under the Federal Rules of Evidence, she might have been successful. Federal Rule of Evidence 412(a), the Rape Shield Rule, provides that:
The following evidence is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c):
(1) Evidence offered to prove that any alleged victim engaged in other sexual behavior.
(2) Evidence offered to prove any alleged victim’s sexual predisposition.
Thus, because questions regarding Carlisle’s past sexual behavior would not have led to admissible evidence or been reasonably calculated to lead to the discovery of admissible evidence, the court likely would have granted Carlisle’s motion. The problem for Carlisle, however, was that Alabama’s Rape Shield Rule, Alabama Rule of Evidence 412, only applies in criminal cases.
One question this prompts is whether Alabama should extend its Rape Shield Rule to civil cases. Chief Justice Sue Bell Cobb thought that it should. In a dissenting opinion, she wrote,
This case exemplifies the need to address in the Alabama Rules of Evidence the admissibility of prior sexual conduct in both criminal and civil matters. The federal rule strikes an appropriate balance between the competing concerns of those who claim to be victims of sexual harassment, who need assurance that they will not be embarrassed by probing discovery into their sexual past, on the one hand, and defendants, who need discovery of relevant evidence, on the other. Accordingly, I urge this Court’s standing committee on the rules of evidence to consider amending Rule 412, Ala. R. Evid., to address these concerns in civil cases.
The question that I want to address in this post, however, is whether, regardless of the applicability of the Rape Shield Rule, the Alabama Supremes should have found that questions regarding Carlisle’s past sexual behavior would not have led to admissible evidence or been reasonably calculated to lead to to the discovery of admissible evidence.
I contend that they should have reached this conclusion because evidence of Carlisle’s past sexual behavior was irrelevant under Alabama Rule of Evidence 401 and/or substantially more prejudicial than probative under Alabama Rule of Evidence 403. But according to the court, “in an appropriate case, the relationship between a plaintiff’s past sexual conduct and the question whether the defendant’s conduct was consensual and the extent to which the plaintiff was injured thereby will be questions for the jury.” Here are the examples the court gave:
For example, Carlisle’s past sexual behavior may include consensual sexual behavior in other workplaces where Carlisle was employed or some analogous context that creates an issue as to the credibility of her claims.
Okay, so, according to the court, if Carlisle engaged in consensual sexual behavior in other workplaces, this could create an issue as to whether she was being credible in claiming that Moore made nonconsensual sexual advances toward her. This makes no sense to me, unless the court was saying that those who (freely) consent to sexual behavior are less credible than those who do not, and this is clearly an indefensible conclusion (Indeed, this is exactly the type of conclusion that led to the adoption of rape shield rules).
Likewise, it is conceivable that Carlisle’s past sexual behavior might have made her unlikely to be ashamed, embarrassed, or distressed as a result of some of Moore’s alleged behavior.
Okay, so according to the court,…well, actually, I’m not sure what the court was saying. According to Carlisle, there was a common element to all of Moore’s alleged behavior: It was nonconsensual. What in her sexual history could possibly make it unlikely that she would be ashamed, embarrassed, or distressed by this alleged behavior? Any prior consensual sexual behavior by Carlisle would tell us nothing about how she would react to nonconsensual sexual behavior by Moore. And it would seem to me that any prior nonconsensual sexual behavior involving Carlisle (if she had previously been the victim of sexual assault or harassment) would, if anything, make her more likely to be ashamed, embarrassed, or distressed as a result of some of Moore’s alleged behavior.