Notwithstanding any other provision of law, in a criminal case in which a person is accused of sexual abuse, reputation or opinion evidence of the past sexual behavior of an alleged victim of such sexual abuse is not admissible.
A grandfather is charged with sexual crimes against his granddaughter based upon acts committed starting in 2004 when she was 8 years-old. At trial, the grandfather wants to introduce into evidence three photographs posted to a Facebook page in 2010 depicting: (1) the alleged victim holding several condoms and her mother standing behind her; (2) the alleged victim inflating a condom like a balloon; and (3) the alleged victim’s mother making a gesture with her hand/face that could be interpreted as a sexual gesture. Do these photographs depict “sexual behavior,” rendering them inadmissible under the rape shield rule? That was a question that the Court of Appeals of Iowa didn’t (have to) answer in its recent opinion in State v. Parker, 2011 WL 5387212 (Iowa App. 2011).
In Parker, the facts were as stated above, with the grandfather claiming, inter alia, that the photographs were necessary (1) to show the relationship the alleged victim has with her mother; (2) to impeach the alleged victim’s claim she was ashamed to talk with her mother about the abuse; and (3) to demonstrate the open relationship between the alleged victim and and her mother.
The trial court found that these photographs depicted “sexual behavior, rendering them inadmissible under the rape shield rule. Alternatively, the trial court found that the photographs were inadmissible because their probative value was substantially outweighed by the danger of unfair prejudice and other dangers under Iowa Rule of Evidence 5.403.
The Court of Appeals of Iowa affirmed, finding that admission of the photographs would violate Iowa Rule of Evidence 5.403 and not reaching the issue of whether admission of the photographs would also violate the rape shield rule.
That said, it seems clear to me that their admission would have violated the rape shield rule because they depicted “sexual behavior.” The Advisory Committee’s Note to Federal Rule of Evidence 412 states in relevant part that
Past sexual behavior connotes all activities that involve actual physical conduct, i.e. sexual intercourse and sexual contact, or that imply sexual intercourse or sexual contact. See, e.g. United States v. Galloway, 937 F.2d 542 (10th Cir. 1991), cert. denied, 113 S.Ct. 418 (1992) (use of contraceptives inadmissible since use implies sexual activity); United States v. One Feather, 702 F.2d 736 (8th Cir. 1983) (birth of an illegitimate child inadmissible); State v. Carmichael, 727 P.2d 918, 925 (Kan. 1986) (evidence of venereal disease inadmissible). In addition, the word “behavior” should be construed to include activities of the mind, such as fantasies or dreams. See 23 C. Wright & K. Graham, Jr., Federal Practice and Procedure, § 5384 at p. 548 (1980) (“While there may be some doubt under statutes that require ‘conduct,’ it would seem that the language of Rule 412 is broad enough to encompass the behavior of the mind.”).
If “sexual behavior” includes activities of the mind, then surely it also includes photographs of a sexual nature posted to a Facebook page. And indeed, other courts have found that sexually suggestive photographs on social networking sites constitute “sexual behavior” for rape shield rule purposes. See, e.g., In re K.W., 2008 WL 4201072 (N.C.App. 2008) (finding that sexually suggestive photographs on a MySpace page triggered a rape shield rule analysis).