The Wonder State: Eastern District of Arkansas Finds Serious Flaw With Arkansas’ Rape Shield Rule

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This Court views the case as illustrating a serious flaw in Arkansas’s criminal justice system, whereby Arkansas applies its rape shield statute in a broad and sweeping fashion without properly focusing on the constitutional rights of the accused. Jackson v. Hobbs, 2010 WL 3397370 (E.D.Ark. 2010).

This was a fairly bold statement by the United States District Court for the Eastern District of Arkansas. So, do the facts back it up?

The facts in Hobbs can be found in the Eastern District of Arkansas’s prior opinion in Jackson v. Norris, 2010 WL 3447275 (E.D.Ark. 2010):  Artie Jackson was charged with first-degree sexual abuse and second-degree sexual assault of a minor child based upon acts that he allegedly committed against his then seven to twelve year-old stepgranddaughter, J.W.

J.W. first made allegations against Jackson when she was 14 years old….The allegations surfaced during a conversation between J.W. and her mother, Regina Barnes….

Barnes…confronted her daughter after learning that her daughter had possibly had a sexual encounter with a young man. In response to her mother’s questioning, J.W. admitted having consensual sex with a teenage boy named Nigel. After learning that the encounter occurred at Nigel’s house, J.W.’s mother asked her how she was able to get transportation to the boy’s house. J.W. responded that “Paw-Paw” (referring to Jackson) had taken her there….

After her mother expressed shock and disbelief that Jackson would provide the necessary transportation, J.W. told her mother that Jackson “did a lot of things that y’all don’t know about” and then proceeded to make the allegations leading to the criminal charges.

Generally, evidence of the alleged victim’s other sexual conduct would be inadmissible under Arkansas’ rape shield rule; however, Arkansas’ rule has an exception if

the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature…. Ark.Code Ann Section 16-42-101(c)(2)(C).

At an in camera hearing, the prosecution argued that evidence of J.W.’s sexual act with Nigel was embarrassing to J.W. and had the capacity to unfairly prejudice and mislead jurors hearing its case. Jackson responded that the subject evidence showed that J.W. had a motive to shift her mother’s emotional reaction from J.W. to Jackson, later claiming on appeal that evidence of other sexual conduct by an alleged victim should always be admissible if it proves that the victim had a motive to lie.

The court agreed with the prosecution, finding that the probative value of the evidence did not outweigh its inflammatory or prejudicial nature, but the United States District Court for the Eastern District of Arkansas disagreed in Jackson v. Norris and found that the exclusion of the subject evidence violated Jackson’s constitutional rights, leading it to grant his petition for writ of habeas corpus. Then, in Jackson v. Hobbs, the court issued the quotation that started this post and, inter alia, granted Jackson’s motion for Release Pending Appeal.

My response: Really? I could see a court finding the probative value of the subject evidence outweighed its prejudicial effect, but I can also see a court reaching the opposite conclusion as the trial court did in this case. But how did the trial court apply the rape shield rule in a broad and sweeping manner? The subject evidence consisted of a 14 year-old girl engaging in a sexual act with a peer. It is hard to imagine what type of evidence of other sexual conduct could be more embarrassing or prejudicial. Moreover, the subject evidence had no direct connection to Jackson beyond the fact that he apparently drove J.W. to the boy’s house, reducing its probative value.

Indeed, the only “broad and sweeping” argument made in the case seems to be Jackson’s argument that the rape shield rule must give way whenever the defendant has evidence of other sexual acts, an argument that courts categorically have rejected. See, e.g., Boggs v. Collins, 226 F.3d 728 (6th Cir. 2000). It seems to me that the Eastern District of Arkansas was not concerned with Arkansas courts applying the rape shield rule too broadly but instead concerned with the rape shield rule itself. And that is a scary thought.

-Colin Miller

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