Invasion of Privacy: Court of Appeals of Texas Finds Trial Court Properly Excluded Evidence of Alleged Victim’s Prior Nonconsensual Sexual Acts Under Rape Shield Rule

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Texas Rule of Evidence 412(a) provides that

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.

Meanwhile, Texas Rule of Evidence 412(b)  provides that

In a prosecution for sexual assault or aggravated sexual assault, or attempt to commit sexual assault or aggravated sexual assault, evidence of specific instances of an alleged victim’s past sexual behavior is also not admissible, unless [an exception applies].

The most typical rationale for such  rape shield rules is that they prevent evidence of an alleged victim’s prior sexual acts to be admissible to prove that the alleged victim has a propensity to consent to sexual acts and thus likely consented to the sexual act at issue. If this were the only rationale, evidence of an alleged victim’s prior nonconsensual sexual acts would not be precluded under such rules. While not explaining its reasoning, the Court of Appeals of Texas, Forth Worth, did not reach this conclusion in its recent opinion in Bryan v. State, 2010 WL 1137038 (Tex.App.-Fort Worth 2010). This post explains why I agree with the court’s conclusion.

In Bryan, the evidence at trial established the following:

When A.M. was six or seven years old, she lived with her mother D .M., her grandfather  [Desmond]  Bryan, and Bryan’s wife in Bryan’s house. A.M. was home alone with Bryan one day watching cartoons in the living room when he asked if she wanted to “see something.” Bryan told A .M. to take off her underwear and lie down on the couch. He lay down next to her and licked her female sexual organ. Bryan told A.M. to go into his bedroom and get on the bed. Bryan got in bed with her and kissed A.M. on her mouth and cheeks. He got up, went to the restroom, shaved his face, and returned to the bedroom. He got back in bed with A.M., took off his pants and underwear, and exposed his penis to A.M. Bryan asked A.M. if she “wanted to,” and A.M. responded, “No.” Bryan got up and said, “Suit yourself.” He put his pants and underwear back on and told her that if she told anyone, everyone would be mad at her and she would be taken away.
Several months later, A.M. moved to Scottsdale, Arizona to live with her father Michael and his girlfriend Tracie. Over a year after the incident with Bryan, A.M. wrote on a sticky note that she wanted to tell her dad something very serious. Tracie saw the note first and asked A.M. if she wanted to talk to her about it. A.M. told her that Bryan had sexually molested her. Tracie woke up Michael, and Michael and Tracie asked A.M. to explain what had happened. A.M. felt more comfortable writing it down than saying it; she wrote that her grandfather had licked her private and had said he enjoyed it. Michael contacted the police.

At the end of trial, Bryan was convicted of one count of aggravated sexual assault of a child and one count of indecency with a child by exposure. Bryan thereafter appealed, claiming, inter alia, that the trial erred by excluding evidence that A.M. was sexually assaulted by a maintenance worker prior to the incident with Bryan. According to Bryan, this evidence should not have been excluded under Texas’ rape shield rule because it did not involve consensual sexual activity. The Court  of Appeals of Texas, however,  disagreed, finding that “rule 412  applies to evidence of the victim’s ‘past sexual behavior,’ and courts have not limited its application to  consensual behavior.”  

The court didn’t provide any explanation for its holding, but I think that it makes sense given the other rationales behind rape shield rules. Those rules are not solely designed to preclude the admission of evidence regarding an alleged  victim’s prior sexual acts to prove that the alleged victim is promiscuous. Instead, they are also designed to protect the privacy of the alleged victim and encourage victims to come forward. As the  Advisory Committee Note to the federal  rape shield rule indicates, the rule is designed in part to support  “[t]he strong social policy of protecting a victim’s privacy and encouraging victims to come forward to report  criminal acts.”  Under this rationale there might even be a stronger basis for excluding evidence of an alleged victim’s prior nonconsensual sexual acts than there is for excluding evidence of an alleged victim’s prior consensual sexual acts.

-Colin Miller

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