Comments on: You’ve Got Mail: Eastern District of Pennsylvania Finds Plaintiff’s E-Mails Admissible In Sexual Harassment Case Despite Rape Shield Rule

By: Women in Law Wednesday « a woman in law school

Women in Law Wednesday « a woman in law school — Wed, 28 Oct 2009 15:34:15 +0000

[...] Court finds e-mails admissible in a sexual harassment suit despite Rape Shield Rule:Â A review of a recent Pennsylvania case where e-mails are admitted to show the sexual harassment victim also engaged in sexual innuendos.Â The author of the post makes a great argument, which I agree with, on why the e-mails shouldn’t have been admitted. [...]

By: efink

efink — Sat, 24 Oct 2009 14:40:16 +0000

And even without Rule 412, the probative value of these marginally relevant (at best) emails (i.e. they show that — in a completely different social context — the plaintiff was not necessarily upset by sexually-tinged humor) would appear substantially outweighed by the prejudicial effect (“Ooh, she likes dirty jokes; she probably enjoyed it”). The analogy that comes to mind would be a suit for (non-sexual) assault/battery, in which the defendant tried to introduce evidence that the plaintiff participates in amateur boxing, to prove that being hit in the face was not an offensive touching for that plaintiff. Would any judge allow that?

By: Colin Miller

Colin Miller — Sat, 24 Oct 2009 13:39:13 +0000

Nathan, that is a good point and one which the court actually debated in its opinion. According to the court,

It is by no means clear that Rule 412 must apply to any of the emails at issue. Although some of the emails include sexual content, none of them expressly involve the sexual”behavior”or”predisposition”of Mrs. Seybert or anyone else involved in this case. Likewise, none of the emails bear on Mrs. Seybert’s personal sexual”reputation”per se, in that none of them involve her actual or alleged personal sexual activity. Rather, the emails contain sexual stories, jokes, images and metaphors of a more general nature, exchanged in an apparent attempt at humor, however ill-advised or lame. All things considered, it could be said that these emails do not touch upon any of the relevant privacy or other interests contemplated by Rule 412, or that the protections of Rule 412 are not necessary in this case or even helpful to any party here.

That said, the court decided to treat the e-mails as covered by Rule 412 because

other courts in this district have used Rule 412 to analyze evidence involving attempted sexual humor and innuendo. See, e.g. Flick v. Aurora Equipment Co., Inc., No. 03-2508, 2004 U.S. Dist. LEXIS 4304, —-6-7 (E.D.Pa. Jan. 15, 2004) (using Rule 412 to analyze evidence regarding plaintiff’s sexual jokes and banter at work, including evidence that plaintiff placed a foam carving of male genitalia in the women’s restroom at work, where such evidence was relevant to plaintiff’s hostile work environment claim based in part on sexual innuendo); Cacciavillano. v. Ruscello, Inc., No. 95-5754, 1996 U.S. Dist. LEXIS 16528, —-1-5 (E.D.Pa. Oct. 31, 1996) (using Rule 412 to analyze evidence regarding plaintiff’s sexual jokes and banter at work).

Personally, I don’t see it as a close call. One of the main purposes of the rape shield rule was to prevent evidence of the attire worn by the alleged victim (as sexual predisposition evidence) and the accompanying argument that she was “asking for it” based upon the clothes that she wore. If the clothes worn by an alleged victim constitute sexual predisposition evidence under the rule, I have no problem with courts considering e-mails with sexual jokes to be sexual predisposition evidence as well.

By: nathan

nathan — Sat, 24 Oct 2009 02:00:55 +0000

I do not understand how the rape shield law is triggered in this case. You say it only bars evidence on”sexual behavior”or”sexual predisposition,”those terms of art need to be interpreted very broadly in order to exclude evidence tending to show that the plaintiff had a crude sense of humor.

By: efink

efink — Sat, 24 Oct 2009 00:50:14 +0000

This decision is so patently wrong, on so many levels. Along with the obvious gender/sexism issues, there is a serious class issue that routinely confronts employment law plaintiffs, whether in discrimination suits or other types of cases. Federal judges, by and large, are people with little or no experience of being a subordinate employee. Even those who can dimly remember having been put upon as young law firm associates are unlikely to have much understanding of what most employees are subject to in the routine course of their jobs (where the common law “Master-Servant” categories remain all-too-descriptive). As a result, the judge in this case probably had no clue what it might be like to have your boss make a crude and demeaning sexual “joke” at your expense in front of colleagues, and simply cannot comprehend why that context makes the situation completely non-analogous to private exchanges of jokes, however, ribald, among friends.