Rape Shield Redux: Supreme Court of Nevada Finds Rule 26 Applies Where Rape Shield Law Doesn’t

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Back in July, I posted an entry about an opinion by the Supreme Court of Alabama permitting discovery regarding a civil plaintiff’s sexual history because Alabama’s rape shield rule only applies to criminal cases. In that post, I argued that, even without the rape shield rule being applicable, the court should have precluded such discovery because “questions regarding [the plaintiff’s] past sexual behavior would not have led to admissible evidence or been reasonably calculated to lead to to the discovery of admissible evidence.” Now, in Sonia F. v. Eighth Judicial Dist. Court, 2009 WL 2900770 (Nev. 2009), the Supreme Court of Nevada has reached the same conclusion.

In Sonia F., Sonia F. the guardian ad litem for fourteen year-old J.M., filed a civil complaint against Amir Ahmad,

alleging various causes of action, all of which stem[med] from Ahmad’s alleged rape of J.M. Specifically, Sonia F. claim[ed] that on the morning of July 5, 2006, Ahmad, who was 20 years old, forcibly raped her 14-year-old daughter, J.M., in Ahmad’s parent’s home. As a result of Ahmad’s conduct, Sonia F. allege[d] that J.M. suffered and continues to suffer physical, emotional, and mental harm. Ahmad admit[ted] having sexual intercourse with J.M. but contend[ed] that it was consensual.

Ahmad thereafter filed a motion to compel J.M. to submit to an independent medical examination which would have involved questions about J.M.’s sexual history. Sonia F. responded by moving for a protective order, but the district court found that such questioning could proceed, prompting Sonia F. to file an emergency petition to the Supreme Court of Nevada seeking clarification of Nevada’s rape shield law to civil cases.

In this regard, Sonia F. faced the same problem as the Alabama plaintiff because Nevada’s rape shield law — NRS 50.090 — plainly and unambiguously “applies to criminal prosecutions but not to civil trials.” And, like the Supreme Court of Alabama, the Supreme Court of Nevada “defer[red] to the Legislature to determine whether the public policy underlying the criminal rape shield law should be extended to include civil cases.”

But that wasn’t the end of the court’s analysis. Instead, the court stated,

Nevertheless, in civil sexual assault cases, we conclude that discovery should not be unlimited. Rather, the district court should use its sound discretion to determine whether the discovery sought is consistent with  NRCP 26(b)(1), which provides that inquiries must be relevant and “reasonably calculated to lead to the discovery of admissible evidence.”

The court then suggested that the district court on remand could grant Sonia F.’s protective order, identifying D.S. v. Depaul Institute, 32 Pa. D. & C. 4th 328 (Ct.Com.Pl. 1996), as instructive on the issue. According to the Nevada Supremes,

Although the  DePaul court concluded that Pennsylvania’s criminal rape shield law did not apply in civil cases, it determined that discovery of a plaintiff’s entire sexual history in a civil action was inappropriate….The court differentiated between the plaintiff’s history of consensual sexual relationships from history of traumatic experiences,…and thereafter emphasized that while consensual relationships may impact a person’s emotions, “[t]he law should not force plaintiffs…to disclose their entire [consensual] sexual…histories whenever they claim that they have sustained psychiatric problems from a traumatic event.

The court did “not adopt a steadfast rule related to discovery in all civil proceedings for sexual assault,” but it did “stress that a district court has the broad discretion under NRCP 26 to determine, on a case-by-case basis, whether an alleged sexual assault victim’s sexual history is discoverable.” Based upon the arguments in my previous post, I think that, at a minimum, courts in states like Alabama should adopt a similar approach.

-Colin Miller

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