Deborah Tuerkheimer’s Judging Sex & The En Banc Opinion That Reversed The Rape Shield Killing Ruling

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Back in 2010, I posted an entry about the Sixth Circuit’s opinion in Gagne v. Booker, 596 F.3d 335 (6th Cir. 2010), the (in)famous rape shield case in which the dissent accused the majority of “effectively abrogat[ing] every rape-shield statute in this circuit….” At the time, I thought that this statement was a bit hyperbolic but agreed with the dissenting judge that the opinion was a nasty piece of work, so I am glad to report that the Sixth Circuit overturned it in in en banc opinion issued yesterday: Gagne v. Booker. In this post, I will address the court’s holding as well as a terrific forthcoming article, Judging Sex (forthcoming, Cornell Law Review), by Professor Deborah Tuerkheimer.

Let’s start with the basic facts of Booker. As I wrote 2+ years ago,

In Booker, “Lewis Gagne and his co-defendant, Donald Swathwood, were each charged with three counts of criminal sexual misconduct for forcibly and simultaneously engaging in sexual activities with Gagne’s ex-girlfriend,  Pamela Clark.” “All of the charges arose out of events occurring over the course of one night,” with some of those events consisting of drug use and group sexual activity on July 3, 2000.   The main issue at trial was not whether Clark engaged in this group sexual activity but whether she consented to it.

Before trial, “Gagne filed a motion in limine seeking to introduce evidence regarding several aspects of Clark’s prior sexual experiences and tastes.” The trial court, however,  ”denied the motion in part, excluding evidence regarding two subjects…: an incident of group sexual activity involving Gagne, Clark, and a man named Ruben Bermudez; and Clark’s solicitation of Gagne’s father to join her and Gagne in group sex.”

After Gagne unsuccessfully appealed in state court, he filed a successful petition for a writ of habeas corpus with the United States District Court for the Eastern District of Michigan, with the Sixth Circuit later affirming the district court’s opinion granting the petition. The basis for Gagne’s petition was that the exclusion of the sexual evidence violated his right to present a defense, meaning that the courts found, in effect, that the rape shield rule (as applied) was arbitrary or disproportionate to the ends that it was designed to serve and that the excluded evidence was “highly relevant” and “indispensable” to Gagne’s defense.

In its en banc plurality opinion, the Sixth Circuit found this conclusion to be hogwash. Instead, according to the court,

The United States Supreme Court has never held that rape-shield statutes do not represent a legitimate state interest, nor has it ever held that highly probative evidence will necessarily outweigh that interest. Quite to the contrary, the Court held in Lucas…that the trial court must balance the state’s interest against the defendant’s interest on a case-by-case basis, and neither interest is superior per se. And the Court concluded in Crane…that a trial court may even “exclude competent, reliable evidence . . . central to the defendant’s claim of innocence,” so long as there exists a “valid state justification.” The Michigan Court of Appeals properly weighed the competing interests, as Supreme Court precedent requires, and did not misidentify or misapply any clearly established federal law.

In other words, the plurality cut to the heart of the matter and found that there was clearly not a violation of Gagne’s right to present a defense without really digging into a full blown rape shield analysis. I therefore much prefer the concurring opinion of Judge Sutton, who wrote separately to point out, inter alia, that

(1) Gagne’s proffered evidence is not as probative as he submits once it is stripped of the forbidden inference that a woman who consents once to group sex is more likely to consent to it in the future; [and that] (2) the State’s interests in its rape shield laws remain strong even after a trial court admits some evidence of the victim’s past sexual practices….

I also prefer Judge Griffin’s strongly written concurrence, which called out the dissent:

In sum, the dissent claims that a fundamental, clearly-established constitutional error was committed by the State courts, not by the exclusion of any direct evidence of whether the alleged crime was committed, but by the exclusion of propensity evidence. The dissent embraces the inference that because the victim did it before, she likely did it again. Moreover, the dissent would not only allow the jury to consider such an inference, but would hold that for purposes of habeas corpus review, the exclusion of such an inference was an unreasonable application of clearly established Federal law, as determined by the Supreme Court. I respectfully disagree.

That takes us to the dissent, which found that

the question presented by Gagne’s case is a narrow one: whether, in a trial where the charged conduct is facially coercive and the only issue is consent, evidence that the complainant had consented to the same kind of conduct with the defendant, only a handful of weeks before, is indispensable to his defense. Under the Supreme Court’s caselaw—and by any measure of fairness and common sense—the clear answer to that question is yes.

In turn, this takes me to Judge Clay’s opinion concurring in the judgment, which was written

separately to clarify the limitations required under the Michigan rape shield law and to further respond to the dissent’s argument in favor of admitting “pattern of conduct” evidence.

Judge Clay found

unpersuasive…the dissent’s “fairness and common sense” standard that it utilizes to support the admissibility of “pattern of conduct” evidence….Gagne did not argue, nor did the district court find, that the purpose of introducing the Bermudez evidence went to Clark’s “motive, bias or prejudice,” but instead to her propensity. Nonetheless, the district court found that the Sixth Amendment required that Gagne be allowed to point to individual instances of Clark’s past conduct to generally attack her credibility, even though this Circuit has previously held that the Constitution has no such requirement.

Finally, this takes me to Professor Tuerkheimer‘s article, which notes that the dissent’s reasoning is not uncommon. Instead,

In consent defense cases, a little-noticed exception allows a court to admit in evidence a woman‘s sexual history if it is viewed as patterned. At the time rape shield law was enacted, this exception ensured that the rule of exclusion would only go so far: too much sex, or sex of the wrong kind, lay outside of its scope. Archaic though it may seem, this function endures. The pattern exception permits the otherwise forbidden inference that past consent to intercourse makes consent on a separate occasion more likely. If certain conditions exist, the protection of the rape shield dissipates.

Exhibit A of this phenomenon in Tuerkheimer‘s article is the initial Sixth Circuit opinion in Gagne v. Booker. In her articleTuerkheimer deftly deconstructs this exception as well as the existing rape shield framework and suggests an alternate theory of sexual consent that rests upon contingency.

This alternative approach to admissibility is instrumental, meaning that it takes account of the prosecutor‘s theory of guilt. In other words, a court should only allow sexual history evidence when the prosecutor‘s case-in-chief has opened the door to its use. To be clear, the door does not open simply because a defendant claims that the victim consented, as the status quo permits. Instead, the trial court must assess the evidential worth of the victim‘s prior sexual conduct solely in relation to the state‘s theory of guilt. In short, the probative value of a woman‘s sexual history must be evaluated— as with any other evidence—with regard to the entire evidentiary record.

The approach that I advocate acknowledges that prosecution‘s presentation of particular arguments and testimony may, under rare instances, create the conditions under which it would be unfair to exclude sexual history evidence. It allows defendants to offer this evidence when it is directly responsive to specific testimony or comment. But it does not allow the inference that prior consent predicts later consent. In short, the proposed approach maintains fidelity to the core prohibition of rape shield law.

For a few illustrations of the circumstances I have in mind: If a prosecutor argues that the jury should infer nonconsent from what is referred to as the bizarre nature of the sexual conduct at issue, a judge might allow evidence that the victim previously engaged in this type of conduct. If a victim testifies that she would never willingly participate in a particular sexual behavior, a judge might allow evidence of such prior consensual activities.

I fully endorse this new framework. Indeed, Federal Rule of Evidence 412(b)(2) already only allows a civil defendant to present evidence of a civil plaintiff’s sexual reputation if the civil plaintiff has placed her reputation in controversy. Tuerkheimer‘s approach merely extends this door-opening analysis to all victim sexual evidence in both civil and criminal cases. And what it does, like “mercy rule” in Federal Rule of Evidence 404(a)(2), is to create a Pandora’s box. If the alleged victim and/or the prosecutor want to prevent propensity character evidence from infecting trial, they merely need to refrain from introducing it. But if they choose to inject the issue of character into trial, they open the door (box) to the defendant potentially presenting evidence of the victim’s sexual history.

Of course, the objection to this argument would be that the “mercy rule” places the power in the defendant’s hands while this framework would place the power in the other sides hands. My response would be that this makes sense given the way that the Federal Rules of Evidence currently treat propensity sexual character evidence. Indeed, I’ve been working on the theory that the current Rules in this regard are sort of like sexual misconduct affirmative action. It used to be that defendants charged with rape paraded the alleged victim’s sexual partners into the courtroom to prove the alleged victim’s propensity to engage in consensual sexual acts and her likely conformity with that propensity — and thus consent — at the time of the crime charged.

The response to this practice was not only the passage of rape shield laws but also the passage of Federal Rules of Evidence 413-415, which allow prosecutors/plaintiffs to present evidence of past sexual misconduct by defendants. In passing these laws, Congress recognized that, like female and minority students/job candidates, alleged victims found that what they said fell on deaf ears. Thus, in both cases, Congress, with much controversy, made an attempt to level the playing field in attempt to increase success rates (in landing jobs/seats and in winning civil and criminal trials).

-Colin Miller

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