The Sexual Innocence Inference Theory: Fact or Fiction? A Spotlight on the Special Concurrence In the Court of Appeals of Idaho’s Recent Opinion in State v. Molen

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You are a juror in the prosecution of a step-grandfather for lewd conduct with a minor, the minor being his eight or nine year old step-granddaughter, with whom he allegedly had genital-to-genital contact. The step-granddaughter has just testified to sexual molestation by her step-grandfather, including sexual intercourse, occurring on many occasions. Do you infer that the step-granddaughter could not possess the sexual knowledge that she possesses unless her step-granddaughter molested her?

According to the vast majority of courts, you do, and the widespread belief in this largely untested “sexual inference innocence theory” has led to the evisceration of the rape shield rule in many child molestation prosecutions. In his special concurrence in the recent opinion of the Court of Appeals of Idaho in State v. Molen, 2010 WL 90580 (Idaho.App. 2010), however, Judge David Gratton called into question this belief, and this post puts a spotlight on his opinion.

The facts in Molen were as stated above, and Idaho’s rape shield rule, Idaho Rule of Evidence 412, provides in relevant part that:

(a) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sex crime, reputation or opinion evidence of the past sexual behavior of an alleged victim of such sex crime is not admissible.

(b) Notwithstanding any other provision of law, in a criminal case in which a person is accused of a sex crime, evidence of a victim’s past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence is–

(1) admitted in accordance with subdivisions (c)(1) and (c)(2) and is constitutionally      required to be admitted; or

(2) admitted in accordance with subdivision (c) and is evidence of–

(A) past sexual behavior with persons other than the accused, offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury; or

(B) past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which the sex crime is alleged; or

(C) false allegations of sex crimes made at an earlier time; or

(D) sexual behavior with parties other than the accused which occurred at the time of the event giving rise to the sex crime charged.

The alleged victim in Molen was S.Z., and  the defendant, Michael Molen, “filed a pretrial motion in limine seeking an advance ruling that the court would admit testimony by five family members who would say that S.Z.’s mother had exposed the child to graphic sexual conduct prior to the charged offense.” According to Molen,

One of the most pressing questions the jury will ask itself is how this eight year old girl would know so much about sex unless she had actually been molested. The Defense will produce several witnesses, including the sisters and mother of [T.D.], the alleged victim’s mother, who will testify that [T.D.] has exposed her daughter [S.Z.] to a constant, graphic, sexually charged lifestyle for her entire life, including openly having sex with multiple partners with [S.Z.] in the home, openly discussing and showing sex toys and pornography in front of [S.Z.], and openly disrobing in front of other family members in the presence of [S.Z.], etc. This evidence is not only relevant under IRE Rule 401 and 402, it is crucial to the jury’s understanding of [S.Z.'s] knowledge of sexual matters and how she obtained it. Without it, the jury will make assumptions that are in no way based in reality.

The prosecution argued in response

that how an eight-year-old knows about sex is “completely irrelevant” because kids learn about sex in any number of ways at any number of different ages. The district court apparently agreed with the prosecution’s relevance argument, because it held that the testimony would not be admitted.

On Molen’s subsequent appeal, neither side raised Idaho Rule of Evidence 412, which meant that the Court of Appeals merely had to address the relevance of Molen’s proposed testimony. On this front, the Court of Appeals of Idaho noted that most other state courts had

held that evidence of a child victim’s prior exposure to sexual conduct may be relevant to show an alternative basis for the child’s sexual knowledge. For example, in a case involving four child victims, the Wisconsin Supreme Court held the trial court had erred in excluding evidence of a prior sexual assault on one of the children, a seven-year-old boy. The Court explained:

The inference that [the victim] could not possess the sexual knowledge he does unless Ms. Pullizano sexually assaulted the children greatly bolsters [the victim's] allegations. In order to rebut that inference, Ms. Pullizano must establish an alternative source for [the victim's] sexual knowledge. Evidence of the prior sexual assault is therefore a necessary and critical element of Ms. Pullizano’s defense.

Nonetheless, the Court of Appeals of Idaho found that the trial court correctly excluded Molen’s proposed testimony because “Molen’s offer of proof d[id] not demonstrate that S.Z. was previously exposed to the sort of acts and bodily conditions that were described in her report of the charged acts.” Of course, the clear implication of the court’s conclusion is that it would have found the proposed testimony admissible if S.Z. were previously exposed to the sort of acts and bodily conditions that were described in her report of the charged acts. And, as the court itself noted, the basis for finding such testimony relevant, and thus admissible, is the belief that jurors would infer that a complainant such as S.Z. could not possess the sexual knowledge that she possesses unless the defendant molested her, making the testimony necessary to rebut the inference.

Judge Gratton disagreed with this reasoning. After noting that this was indeed a case that triggered the rape shield rule, Judge Gratton noted that the majority was in essence adopting the sexual innocence inference theory. According to Judge Gratton,

the sexual innocence inference theory is based on the presumption that a jury will likely assume that a child is innocent of sexual matters and, when the child testifies to specific sexual acts, the jury will then infer that the child could not have testified to such acts unless they indeed occurred….This theory, backed by scant, if any, empirical data is, however, accepted in some fashion by a majority, but not all courts….These courts variously analyze this evidence as a way around rape shield laws or as constitutionally required despite or within the confines of rape shield laws….In order to rebut the inference, a defendant, like Molen, will seek to introduce evidence of an alternative source of sexual knowledge from which the child could describe the alleged events. In the end, if one accepts the theory, at least to some extent, evidence of a child’s prior sexual knowledge may be relevant to rebut the inference.

In addition to challenging the empirical basis for the sexual innocence inference theory, Judge Gratton took issue with the fact that the theory is treated as an inference. According to Judge Gratton, “[r]equiring analysis of the proffered evidence as rebuttal of a presumed fact or inference  accords it too much weight and skews the relevance and balancing analysis.” This is because “recognizing the theory as a presumption or inference has legal meaning” as Black’s Law Dictionary defines a “presumption” as

A legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts. Most presumptions are rules of evidence calling for a certain result in a given case unless the adversely affected party overcomes it with other evidence. A presumption shifts the burden of production or persuasion to the opposing party, who can then attempt to overcome the presumption.

I agree with Judge Gratton on both counts. First, there appears to be very little empirical data supporting the inference. In support of his claim that there is scant empirical data supporting the inference, Judge Gratton cited to Christopher B. Reid, Note, The Sexual Innocence Inference Theory as a Basis for the Admissbility of a Child Molestation Victim’s Prior Sexual Conduct, 91 Mich. L. Rev. 827, 830 & n.15 (1993), in which the author noted that there is “sparse empirical data which lend [the inferece] limited support [FN15]”

[FN15] At least one study argues that juries might make the sexual innocence inference in certain situations. Gail S. Goodman et al.,  When a Child Takes the Stand, 11  LAW & HUM. BEHAV.  27, 38 (1987) (hypothesizing that jurors may be more likely to believe a younger child because such a child does not have the sexual knowledge to be able to fabricate a detailed sexual molestation charge);  See also Bruce E. Bohlman,  The High Cost of Constitutional Rights in Child Abuse Cases – Is the Price Worth Paying?, 66 N.D. L.  REV.  579, 582 (1990) (“[The Goodman study,  supra,] concluded that while credibility usually increases as the age of the child increases, the opposite is true for children testifying in sexual abuse cases. The study found jurors are more prone to believe a younger child because the young child does not have sufficient experience or knowledge to fabricate a report of sexual activity.”) (footnotes omitted).  But see id. at 582 n.21 (“The literature is in the developmental stage on the issue of credibility of children, and one can certainly state that children’s credibility is not a subject on which there is universal agreement. As in every case, the credibility of each witness is for the trier of fact to determine.”);  HARRY KALVEN, JR. & HANS ZEISEL, THE AMERICAN JURY  170 (1966) (“[I]n a series of child sex cases, the suggestion is that the jury has a distinctive tendency to believe the accused adult as against the accusing young child…. [This suggestion is doubtful.] One would expect that in these conflicts the choice between child and adult is extremely close, sometimes falling one way, sometimes the other. And indeed this is the case.”).

In other words, as of 1993, there was about as much evidence disputing the inference as there was evidence supporting inference, and there wasn’t much of either. I scoured opinions applying the inference since 1993 to try to see if they were relying upon new empirical data to support the inference, and I didn’t find any.

So, if we’re keeping tabs, both sides in child molestation cases have gripes based upon the lack of empirical evidence supporting credibility-based rules. As noted above, prosecutors can claim that scant empirical evidence supports the sexual innocence inference theory. Meanwhile, one of the justifications for Federal Rule of Evidence 414, which allows for evidence of prior acts of child molestation to be introduced against a defendant charged with child molestation was that “such cases require reliance on child victims whose credibility can readily be attacked in the absence of substantial corroboration. 140 Cong. Rec. H8991  (daily ed. Aug. 21, 1994) (statement of House sponsor Rep. Molinari). And one of the main criticisms of the Rule (and Rules 413 and 415) was that it was not based upon any empirical evidence.

Now, it is bad enough that the majority of courts have adopted the sexual innocence inference theory based upon scant empirical evidence, but, as Judge Gratton noted, it is worse that these courts have given this theory the legal status of an inference. As Judge Gratton indicated,  ”recognizing the theory as a presumption or inference has legal meaning,” which is why an inference is ”  based on the known or proven existence of some other fact or group of facts.” For example, to establish an inference of employment discrimination, a plaintiff must demonstrate that:

(i) she is a member of a protected class; (ii) she was qualified for the position; (iii) she was subjected to an adverse employment decision; and (iv) either the position remained open or she was replaced by someone not a member of his protected class.

And the consequence of a plaintiff establishing this inference is that it shifts  the  burden  of production to the employer to proffer a legitimate non-discriminatory reason for its action. Similarly, when a court recognizes the sexual innocence inference, the burden shifts to the prosecution to establish the irrelevancy of past sexual behavior by the alleged victim, a burden courts generally find that the prosecution cannot establish. But again, where is the evidence to support the inference? In my review of precedent applying the inference, I have never seen a defendant present anything more than the mere assertion that the jury would likely infer that the alleged victim could not possess the sexual knowledge she does unless molested by the defendant. And, as noted, there is scant empirical evidence to support the inference.

Such a paucity of evidence is insufficient to support inferences in any other context. So, why do court continue to adopt the sexual innocence inference theory?

-Colin Miller

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3 Responses to The Sexual Innocence Inference Theory: Fact or Fiction? A Spotlight on the Special Concurrence In the Court of Appeals of Idaho’s Recent Opinion in State v. Molen

  1. OlinWellborn says:

    “In my review of precedent applying the inference, I have never seen a defendant present anything more than the mere assertion that the jury would likely infer that the alleged victim could not possess the sexual knowledge she does unless molested by the defendant.”

    Take a look at Summitt v. State, 101 Nev. 159, 697 P.2d 1374 (1985), footnote 4: “In the affidavit supporting appellant-defendant‘s motion for a new trial in the proceedings below, it was asserted that Juror No. 1, Richard L. Linton, after the verdict was rendered, stated to both counsel for the state and the appellant that during the jury‘s deliberations ‘the question was posed among the jurors why a girl of such a young age would know of such sexual acts unless they had, in fact, occurred as alleged.’”

    Now you have seen what you “have never seen.”‖

  2. Colin Miller says:

    Thanks for the comment. This is exactly the type of case I couldn’t find. It is also a very interesting opinion. Here are a couple of my thoughts on it:

    First, how did the court receive the juror’s affidavit? NRS 50.065(2) provides that “Upon an inquiry into the validity of a verdict or indictment:

    (a) A juror shall not testify concerning the effect of anything upon his or any other juror’s mind or emotions as influencing him to assent to or dissent from the verdict or indictment or concerning his mental processes in connection therewith.

    (b) The affidavit or evidence of any statement by a juror indicating an effect of this kind is inadmissible for any purpose.”

    It seems to me that the affidavit should have been excluded under this anti-jury impeachment rule.

    Second, it looks like the Supreme Court of Nevada found in Summitt that the defendant should be able to present his evidence pursuant to the right to present a defense, i.e., on Constitutional grounds and not solely on evidentiary grounds. That is interesting because the majority in Molen (1) adopted the sexual innocence inference theory but (2) found that it was inapplicable in the case before it and (3) found that the non-application of this inference in the case before it did not violate Molen’s right to present a defense.

    Meanwhile, in his special concurrence, Judge Gratton (1) rejected the sexual innocence inference theory and (2) found that the only way that courts should admit evidence like the evidence that Molen wanted to present would be on Constitutional (right to present a defense) grounds and not solely on evidentiary grounds. I’m a big proponent of the right to present a defense (indeed, I argued in a recent article that it should apply in cases of juror racial or other prejudice to invalidate anti-jury impeachment rules like the one cited above) and would advocate Judge Gratton’s view over the majority view.

    Third, the complainant in Summitt was six years old while the complainant in Molen was eight or nine years old. I wonder if we would expect this age difference to make a difference? I also wonder whether we would expect children to know more about sex in 2010 than we expected them to know in 1985?

    To me, these are all fascinating questions, and the case you cited provides some anecdotal evidence of the sexual innocence inference theory. It seems to me that based upon the majority of courts adopting that theory that the time has come for a broad study to determine whether and/or to what extent that theory is borne out.

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