The Only Exception: Arkansas Case Reveals Danger Of State’s Undifferentiated Rape Shield Exception

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Like many state counterparts, Federal Rule of Evidence 412(a), the Federal Rape Shield Rule, precludes the admission of evidence of an alleged victim’s prior sexual behavior/predisposition to prove her propensity to consent to sexual acts and her likely conformity with that propensity, and thus consent, at the time of the crime charged. And, like many state counterparts, Federal Rule of Evidence 412(b) contains three enumerated and narrowly construed exceptions to this proscription. See, e.g., United States v. Shamsud-Din, 2011 WL 5118840 (N.D.Ill. 2011) (“The Seventh Circuit has noted that the exceptions to Rule 412 apply in ‘limited circumstances.’”).

As the recent opinion of the Supreme Court of Arkansas in State v. Kindall, 2011 WL 5112841 (Ark. 2011), reveals, however, Arkansas’ rape shield rule contains an undifferentiated, catch-all exception. And, as the opinion also reveals, that’s a dangerous thing.

In Kindall, Bernard Kindall was charged with second-degree sexual assault of K.J., a person less than fourteen years old. Before trial, Kindall filed a motion pursuant to Arkansas’ rape shield statute, “alleging that evidence K.J. had made similar allegations of sexual misconduct against others was relevant and admissible.” Thereafter,

Pursuant to the rape-shield statute, the circuit court held an in-camera hearing on Kindall’s motion. At that hearing, K.J. testified that in 2006, her cousin D.R. sexually abused her, and that her mother confronted her about the abuse on the day it happened. K.J. testified that she initially denied that the abuse occurred because she feared her mother would not believe that she was an unwilling participant. However, K.J. testified that she later that same day told her mother that the abuse had occurred and thereafter never wavered in her assertion that the allegation was true. D.R. testified and denied the abuse. He admitted to being taken into custody but reported he was released when the case was dismissed. The circuit court ruled from the bench that the alleged prior sexual conduct was relevant as to K.J.’s credibility, but the written order does not make a finding that the offered evidence was “relevant to a fact in issue.”

In response, the State filed an interlocutory appeal to the Supreme Court Arkansas, which reversed. Importantly, though, the Arkansas Supremes reversed based upon procedure, not substance. And in doing so, the court strongly implied that it would uphold a procedurally proper order entered after remand.

The problem for the circuit court was that it failed to comply with Ark.Code Ann. § 16–42–101(c)(2)(C), which provides an exception to Arkansas’s rape shield rule if, following an in camera hearing,

the court determines that the offered proof [of sexual behavior/predisposition] is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature, the court shall make a written order stating what evidence, if any, may be introduced by the defendant and the nature of the questions to be permitted in accordance with the applicable rules of evidence….

As noted above, the circuit court did not explain its relevance reasoning in its written order, which is why the Supreme Court of Arkansas reversed and remanded. It didn’t do so based upon substance. Indeed, the court made clear that “‘the circuit court is vested with a great deal of discretion in determining whether the evidence is relevant, and we will not overturn the circuit court’s decision unless it constituted clear error or a manifest abuse of discretion.’”

But how could there be a manifest abuse of discretion under Arkansas’ exception?Ark.Code Ann. § 16–42–101(c)(2)(C) is an undifferentiated, catch-all exception. K.J., a young child, initially denied that she was sexually assaulted by her cousin but then disclosed the abuse and thereafter never wavered in that assertion. The circuit court found evidence of these events relevant to credibility, with its probative value outweighing its inflammatory/prejudicial nature. I disagree. I think that many others would disagree. Maybe the Supreme Court of Arkansas will disagree. But will it find the circuit court’s decision to be a manifest abuse of discretion? Doubtful. There’s simply too much discretion in the language of § 16–42–101(c)(2)(C) for (m)any decisions to be manifest abuses of that discretion.

Contrast this with Federal Rule of Evidence 412(b), which sets forth three enumerated exceptions to the Federal Rape Shield Rule for:

(A) evidence of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence;

(B) evidence of specific instances of sexual behavior by the alleged victim with respect to the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and

(C) evidence the exclusion of which would violate the constitutional rights of the defendant.

If evidence of sexual behavior/predisposition doesn’t satisfy Rule 412(b)(1)(A) or Rule 412(b)(1)(B), the court can only admit it if its exclusion would violate some Constitutional right of the defendant. And if it wouldn’t, an appellate court would surely reverse a district court order admitting such evidence. The proffered evidence in Kindall doesn’t satisfy Rule 412(b)(1)(A) or Rule 412(b)(1)(B), and I can’t think of a Constitutional Right that its exclusion would violate (although the defendant could try to claim the right of confrontation).

-Colin Miller

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