But It Was Only A Fantasy: North Carolina Opinion Reveals Troubling Exception to the State’s Rape Shield Rule

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Rape shield rules prevent the defendant from presenting evidence regarding the alleged victim’s other sexual behavior and sexual predisposition to prove that she consented to the sexual act at issue. Typically, these rules contain three exceptions. First, a defendant can sometimes present evidence regarding the alleged victim’s other sexual acts close in time to the act at issue to prove that a person other than the defendant was the source of semen, injury, or other physical evidence. Second, a defendant can sometimes present evidence of other sexual acts between the alleged victim and himself to prove consent. Third, a defendant can sometimes present evidence of other sexual acts by the alleged victim if the court concludes that the exclusion of that evidence would violate  the defendant’s constitutional rights.

Upon reading the recent opinion of the Court of Appeals of North Carolina in State v. Oliver, 2009 WL 3350638 (N.C.App. 2009), I came upon a fourth exception which appears to be unique to North Carolina. Pursuant to North Carolina Rule of Evidence 412(b)(4), there is an exception to North Carolina’s rape shield rule for “evidence of sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act or acts charged.” This post argues that this exception makes no sense, given the history of rape shield rules.

Now, the Oliver opinion merely mentioned this fourth exception but did not apply it. That said, according to Tess Wilkinson-Ryan in her comment, Admitting Mental Health Evidence to Impeach the Credibility of a Sexual Assault Complainant, 153 U. Pa. L.Rev. 1373 (2005), North Carolina courts apply this exception somewhat frequently, with disturbing results. According to Wilkinson-Ryan,

North Carolina takes a unique and deeply problematic approach to the issue of psychological testimony in rape prosecutions. The North Carolina rape shield statute, like most rape shield provisions, allows for testimony about sexual history between the complainant and the defendant or evidence that would call into question the identity of the perpetrator.  However, it also allows for “evidence of sexual  behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized  or invented the act  or acts charged.”  This law makes questions about the complainant’s capacity to confuse fantasy and reality, or to confabulate, a routine part of a rape trial. In order to introduce psychological testimony, the mere suggestion of psychological aberration is adequate.  In State v. Heath, the court of appeals found that when the defense suggests that “the victim may have had a history of fantasizing or fabricating stories, expert psychological or psychiatric testimony should be admissible to show that the victim does or does not suffer from a mental condition suggestive of fabrication.”

Prosecutors have found ways to employ this rule to their advantage, using the opening as a means of introducing evidence of a truthful character via expert witnesses, who may be most credible to a jury. In State v. Norfleet, the court of appeals upheld the prosecutor’s direct examination of a clinical social worker, in which the prosecutor asked if she “had any concerns about [the complainant’s] ability to distinguish between fantasy and reality.”  Not only was the question deemed proper, but the social worker’s expansive encomium to the complainant’s truthfulness was also permitted even though the defense counsel argued that the testimony “amounted to an expert opinion that [the] victim was telling the truth.”  This apparent boon for prosecutors, however, is actually just a preemptive strike that is tactically  necessary under a regime that places the victim’s predisposition for confabulation at the crux of the trial. Yet, by introducing expert testimony as to the complainant’s psychological health, the prosecution raises the issue for the jury and opens the door for the defense to cross-examine the expert and potentially introduce psychiatric testimony in rebuttal.

The North Carolina law is an explicit expression of distrust of women accusing men of rape. However, women’s rape fantasies (a controversial subject in itself)  are not necessarily–or even usually–linked to real-world desires to be raped.  The law contributes directly to the”no means yes”stereotype that encourages male aggression and female passivity.  It seems particularly outrageous to imagine that women are unable to distinguish these fantasies from reality in such numbers that the issue required legislation. The North Carolina law is unusually invasive because the fantasy provision also allows evidence of sexual history if it pertains to sexual confabulation and fantasy. The existence of the statute implies an authoritative stance on a supposed female predisposition to confuse fantasies of rape with the real thing.

So, what led to the creation of this fourth North Carolina rape shield exception? I couldn’t find any legislative history on the subject, but it seems clear to me that the exception was born out of the writings of John Henry Wigmore, probably evidence’s greatest scholar but also possibly its biggest misogynist.  Wigmore believed that many women falsely accuse men of rape because they confuse a sexual fantasy with a violent crime, leading Wigmore to conclude that every sex offense complainant should be tested and examined by a qualified physician. See id.

Of course, “Wigmore’s view that such expert opinion is indispensable to the inquiry has been soundly rejected by the courts.” Harriet R. Galvin, Shielding Rape Victims in the State and Federal Courts:  A Proposal for the Second Decade, 70 Minn. L. Rev. 763, 863 n.476 (1986). Instead, most courts have adopted a general rule under which a judge, “in [her] discretion, may order a psychiatric examination of the complainant when presented with compelling reasons.” Id. Indeed, the assumptions made by Wigmore and others played a large role in the eventual passage of rape shield rules. See, e.g., Denise R. Johnson, Prior False Allegations of Rape: Falsus in Uno, Falsus in Omnibus, 7 Yale J.L. & Feminism 243, 256 (1995).

This being the case, how can North Carolina have a rape shield rule and yet include in it an exception which allows for the routine admission of the very type of evidence that rape shield rules were passed to exclude? To me, North Carolina’s approach seems horribly misguided, and I hope that the state reconsiders its approach and repeals this fourth rape shield exception.

-Colin Miller

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