In Anderson, Steven Anderson was convicted of two counts (abusive sexual contact with S.P. and attempted aggravated sexual abuse of S.M.) and acquitted of one count (abusive sexual contact with S.M.). These sexual acts occurred on or about September 23, 2008, with Anderson claiming that the acts were consensual and S.M. alleging that the acts were not consensual. After he was convicted, Anderson appealed, claiming, inter alia, that the district court erred in precluding him from presenting evidence of consensual sexual acts that occurred between S.M. and him in the late fall of 2007.
The importance of this evidence was not that it established a prior consensual sexual relationship between Anderson and S.M.; instead, S.M. admitted that she had a romantic relationship with Anderson. What this evidence would have done was to establish the recency of this relationship.
As the block quote that led this post makes clear, the district court deemed this evidence inadmissible because the 2007 acts were private while the 2008 acts were public. In other words, the district court found that evidence regarding the 2007 acts satisfied Federal Rule of Evidence 412(b)(1)(B), which provides an exception to the Rape Shield Rule for
evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor….
But the court found that the evidence nonetheless failed the balancing test set forth in Federal Rule of Evidence 403, which provides that
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
The purpose of this post is not to claim that the Sixth Circuit erred in reversing the district court. The Anderson was complicated, and I’m in no position to second guess the ultimate conclusion of the court. That said, I do take issue with the Sixth Circuit concluding that “the prejudicial impact of” evidence of the 2007 acts “was minimal.”
Really? S.M. claimed that she was the victim of abusive sexual contact and attempted aggravated sexual abuse at the hands of Anderson. Anderson’s response was that these sexual act were consensual because S.M. had previously consented to sexual acts with him. Is evidence of these prior sexual acts not extremely prejudicial? I think that the answer is clearly “yes” because all Rule 412(b)(1)(B) evidence is extremely prejudicial. As the Supreme Court of Kentucky noted in Mayo v. Commonwealth, 322 S.W.3d 41, 49 (Ky. 2010),
Solely for the sake of analysis, we shall assume that the victim did have consensual anal sex with Mayo in the past. That does not mean, however, that she consented to having anal sex—or any other type of sex—with Mayo on the date in question. And the only real issue in Mayo’s trial was whether the victim consented to the intercourse in question, or whether that intercourse was rape by forcible compulsion.
In other words, the question in a case involving an alleged rape, sexual assault, etc., the question is always whether the sexual act at issue was consensual, not whether previous acts were consensual. Courts sometimes allow for the admission of prior consensual sexual acts between the defendant and the alleged victim because they have some tendency to prove that the sexual act at issue was consensual. But of course that tendency can be very slight. Just because an alleged victim once consented to a sexual act with a defendant did not mean that she later consented to another sexual act with the victim. A million different things could have changed in between these two acts.
And thus is precisely why Rule 412(b)(1)(B) evidence is prejudicial. When the defendant can present evidence under Rule 412(b)(1)(B), pre-Rape shield precedent would tell us that the jury will jump to the conclusion that the sexual act at issue was consensual, and the alleged victim will now need to convincingly explain to the jury what changed.
Now, perhaps the Sixth Circuit’s point was that the subject evidence was minimally prejudicial because S.M. had already admitted that she had a romantic relationship with Anderson. I disagree. Anderson admitted to a consensual romantic relationship with Anderson but claimed that the sexual acts at issue were not consensual. Anderson wanted to present evidence of consensual sexual acts between S.M. and him within a year of his alleged crimes to prove, what? Obviously, his point was that the sexual acts at issue must have been consensual because S.M. had consented to sexual acts with him not long before the sexual acts at issue.
Would such evidence have been probative on the issue of consent? Sure. But would it also have been extremely prejudicial to S.M.? Absolutely. In effect, the Sixth Circuit was saying that it wasn’t good enough for the jury to learn generally of a consensual romantic relationship between Anderson and S.M. Instead, the jurors also needed to learn of the recency of that relationship to put into perspective the allegations against Anderson. I might agree with the Sixth Circuit that this evidence should have been admitted. But I absolutely disagree with its conclusion that this evidence was minimally prejudicial.