Some 35 years ago, the Michigan state legislature determined that a criminal defendant accused of rape may not introduce evidence about the victim’s past sexual behavior, because the victim’s past willingness is not relevant to the question of present consent. The majority here disagrees with that legislative determination and concludes that evidence of the victim’s promiscuity or previous willingness to engage in somewhat similar sex acts was not only relevant but was”indispensable”and”the most relevant evidence.”Moreover, because this appeal arises in the context of a habeas proceeding, the majority ultimately holds that the rape defendant has a”constitutionally protected”and”clearly established”right to introduce this evidence. In so holding, the majority effectively abrogates every rape-shield statute in this circuit….I do not believe that there is any such constitutional right to present evidence of a rape victim’s promiscuity or past willingness to engage in sex acts, nor do I believe that the majority is justified in its condemnation of the rape-shield concept. I dissent. Gagne v. Booker, 2010 WL 616436 (6th Cir. 2010) (Batchelder, J., dissenting).
I’m not sure that I agree with Judge Batchelder that the majority’s opinion in Gagne v. Booker “effectively abroagates every rape-shield statute in [the Sixth] circuit,” but it is a nasty piece of work that badly misconstrues the purposes behind the rape shield rule and its exceptions.
In Booker, “Lewis Gagne and his co-defendant, Donald Swathwood, were each charged with three counts of criminal sexual misconduct for forcibly and simultaneously engaging in sexual activities with Gagne’s ex-girlfriend, Pamela Clark.” “All of the charges arose out of events occurring over the course of one night,” with some of those events consisting of drug use and group sexual activity on July 3, 2000. The main issue at trial was not whether Clark engaged in this group sexual activity but whether she consented to it.
Before trial, “Gagne filed a motion in limine seeking to introduce evidence regarding several aspects of Clark’s prior sexual experiences and tastes.” The trial court, however, “denied the motion in part, excluding evidence regarding two subjects…: an incident of group sexual activity involving Gagne, Clark, and a man named Ruben Bermudez; and Clark’s solicitation of Gagne’s father to join her and Gagne in group sex.”
After he was convicted, Gagne appealed, claiming that this evidentiary ruling violated his Constitutional rights, and the Court of Appeals of Michigan “acknowledged that rape shield statutes can occasionally abridge a defendant’s constitutional rights, but concluded that the evidence of the group sexual activity with Bermudez and the invitation to Gagne’s father were irrelevant because they involved third parties….”
The Supreme Court of Michigan thereafter denied Gagne leave to appeal, prompting him to file a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Michigan. Mich. Comp. Laws Section 750.520j provides in relevant part that
(1) Evidence of specific instances of the victim’s sexual conduct, opinion evidence of the victim’s sexual conduct, and reputation evidence of the victim’s sexual conduct shall not be admitted under sections 520b to 520g unless and only to the extent that the judge finds that the following proposed evidence is material to a fact at issue in the case and that its inflammatory or prejudicial nature does not outweigh its probative value:
(a) Evidence of the victim’s past sexual conduct with the actor.
(b) Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, or disease.
In addressing Gagne’s petition, the district court noted that it “need not decide whether the state courts correctly applied Michigan’s rape shield law, because ‘a federal [habeas] court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States.’” Gagne v. Booker, 2007 WL 1975035 (E.D.Mich. 2007). The district court thereafter granted Gagne’s petition, finding that the trial court’s ruling deeming the sexual evidence admissible “was an unreasonable application of clearly established federal law.”
The Sixth Circuit thereafter affirmed, finding that the clearly established federal law that the trial court’s ruling violated was the right to present a defense, which is abridged by the application of evidence rules that “‘infring[e] upon a weighty interest of the accused’ and are ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’” Holmes v. South Carolina, 547 U.S. 319, 324 (2006). According to the Sixth Circuit, this right can be violated when a court excludes evidence that “is so ‘highly relevant’ that it becomes ‘indispensable’ to the success of the defense.”
The Sixth Circuit then found that the excluded evidence met this test because Mich. Comp. Laws Section 750.520j
itself contains exceptions that demonstrate that the interests it usually serves must also accommodate the defendant’s interest in the admission of evidence that is highly relevant, such as prior sexual conduct between the complainant and the defendant. While we are not reviewing the manner in which the Michigan courts applied the rape shield statute, which is a matter of state law, the fact that it contains this exception illustrates that the Michigan legislature recognized that the defendant has a heightened claim to the introduction of evidence of previous sexual contact with his accuser.
This is where the court got it wrong. The exception to Michigan’s rape shield rule for “[e]vidence of the victim’s past sexual conduct with the actor” does not indicate that the Michigan legislature determined such evidence to be highly relevant; it merely indicates that the legislature determined that such evidence might be relevant enough in a given case to be admitted. This is clear from the wording of the rule, which does not automatically allow for the admission of such evidence but instead allows for its admission only if “its inflammatory or prejudicial nature does not outweigh its probative value.”
In other words, the rape shield rule typically prevents the parade of prior sexual partners from testifying against the alleged victim. Such evidence lacks probative value because, obviously, evidence of an alleged victim’s consent to past sexual acts does not support the conclusion that she consented to the sexual act at issue. And such evidence is extremely prejudicial because it basically labels the alleged victim as promiscuous and is used to show that such promiscuity makes it unlikely that she denied consent to the sexual act at issue.
Under the exception mentioned above, the balancing of probative value and prejudicial effect might differ. If the alleged victim accuses the defendant of rape and claims that she never previously engaged in consensual sexual acts with the defendant, evidence of their prior sexual relations would have some probative value to give the jurors a more complete picture of the relationship between the two (and impeach the alleged victim). That evidence would also have lower prejudicial effect than the evidence in the example above because it would not (explicitly) label the alleged victim as promiscuous; it would merely indicate the she had sexual relations with one person.
Now, let’s look at the facts in Booker. Clark was Gagne’s ex-girlfriend. As far as I can tell from the court’s opinion, Clark never denied that she had past consensual sexual relations with Gagne. This was not a case where an alleged victim accused an alleged stranger or mere acquaintance of rape and he had evidence of their past sexual relations. This means that the evidence at issue had low probative value. Moreover, even if Clark denied having past sexual relations with Gagne, surely defense counsel could have presented evidence of past sexual acts between the two that was less prejudicial than the evidence at issue.
This leads to the prejudicial effect of the evidence at issue. According to the Sixth Circuit, the evidence at issue was extremely probative because it related to acts “remarkably similar to the events that occurred the night of July 3.” Again, this is where the court got it wrong. Federal Rule of Evidence 412, the federal Rape Shield Rule, contains an exception similar to the aforementioned exception to Mich. Comp. Laws Section 750.520j, and the Advisory Committee Note to that Rule states that “[e]vidence relating to the victim’s alleged sexual predisposition is not admissible pursuant to this exception.”
In other words, defense counsel in a rape trial could present evidence that the alleged victim and the defendant engaged in prior consensual sexual acts but could not present evidence that they engaged in sadomasochistic sexual acts to prove the alleged victim’s predisposition toward such acts. Such evidence is merely prejudicial and not probative, like evidence of a prior assault offered to impeach the credibility of a testifying defendant charged with assault. Similarly, evidence that Clark engaged in other acts of group sex was not probative or her predisposition toward such acts; it was merely prejudicial (and made more prejudicial by the fact that it involved third parties). Accordingly, the trial court was right to exclude it, and the Sixth Circuit was clearly wrong in finding that the court’s decision was an unreasonable application of clearly established federal law.
Now, as I said above, I don’t quite agree with Judge Batchelder that the majority’s opinion in Gagne “effectively abroagates every rape-shield statute in [the Sixth] circuit” because it presumably keeps in place those statutes’ protections when the defendant tries to introduce evidence of the alleged victim’s prior sexual acts with people other than the defendant. That said, the opinion drills a pretty big hole into those statutes, and the opinion is clearly erroneous. According to the Sixth Circuit, the Rape Shield Rule is really a Rape Sieve Rule, and one with pretty big holes.