The Devil is in the Dictum: Second Circuit Makes Troubling Statements in Dictum in Rape Shield Ruling

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A female employee allegedly flashes her breasts to co-workers at the workplace. That female employee later brings a sexual harassment action against her superior, claiming that he touched her thighs and breasts, offered her job security in return for sex, and showed up uninvited at her residence. The superior, who was not present during the alleged breast flashing, seeks to present evidence of this flashing in his defense. How should the court rule? Clearly, the answer should be to deem the evidence inadmissible. And indeed, that is what the United States District Court for the Southern District of New York held in hearing a case with these facts:  Basile v. Spagnola. Moreover, the Second Circuit recently affirmed that decision in its recent opinion in Basile v. Spagnola, 2009 WL3015489 (2nd Cir. 2009). So, what’s the problem? Well, in this case, the devil is in the dictum.

The facts in Spagnola were basically the facts listed above. Julia Basile brought a sexual harassment action against her superior, Walter Spagnola, and

presented testimony from herself and two other witnesses about multiple incidents of inappropriate behavior by Spagnola. These witnesses detailed inappropriate behavior by Spagnola, including touching Basile’s thighs and breasts, offering her job security in return for sex, and showing up uninvited at Basile’s residence.

In an attempt to defend against these claims,

Spagnola sought to introduce testimony that Basile had flashed her breasts at the workplace when Basile was offduty. Spagnola did not witness the event himself, relying on hearsay from a co-worker. The court declined to admit the evidence, finding that the prejudicial effect of the evidence outweighed the probative value.

The Second Circuit affirmed this ruling, but not because it agreed with the district court’s conclusion. Instead, according to the Second Circuit, the district court

stated that the ruling was merely a preliminary one, and provided Spagnola the opportunity to produce eyewitnesses who could testify as to the incident. He failed to do so. In light of this, it was not an abuse of discretion for the court to deny Spagnola’s motion  in limine and preclude evidence of Basile’s sexual conduct.

The Second Circuit should have just affirmed the district court’s ruling. Instead, the appellate court implied that the problem with Spagnola’s argument was that he was relying upon hearsay rather than eyewitness testimony, not that the evidence he sought to admit was completely irrelevant to the issues at trial.

The Second Circuit noted that the rape shield rule — Federal Rule of Evidence 412 — applies to sexual harassment lawsuits. And the court noted that, unlike in criminal cases, evidence of past sexual behavior by a civil plaintiff is almost never admissible under an exception to the rape shield rule because such evidence is only admissible “if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.”

I can’t think of how evidence of Basile’s alleged breast flashing would have any probative value on the issue of whether Spagnola sexually harassed Basile, especially when he wasn’t even present for the alleged act (not that his presence would have changed things). Meanwhile, the admission of such evidence would greatly harm Basile and cause unfair prejudice to her case. It thus seems to me that the district court was completely correct in finding that the problem with the evidence Spagnola sought to introduce was its substance, not its form. Conversely, I don’t know what the Second Circuit was thinking.

-Colin Miller

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