Pages In Your Diary: Supreme Court of West Virginia Badly Errs in Deeming Diary Entries Admissible Despite Rape Shield Rule

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A defendant is charged with second-degree sexual assault and related crimes after another individual and he allegedly commit sexual crimes against a 13 year-old victim. After the alleged crimes, the alleged victim starts writing in a notebook and writes in that notebook that her only sexual encounters were with “Chris,” who was not either of the individuals involved with the alleged sexual assault. At the defendant’s trial, should he be allowed to admit the notebook? According to the recent opinion of the Supreme Court of West Virginia in State v. Jonathan B., 2012 WL 5898025 (W.Va. 2012), the answer is “yes.” I strongly disagree.

In Jonathan B., the facts were as stated above. At trial, the court precluded the defendant, Jonathan B., from introducing the alleged victim’s (M.B.’s) notebook entry into evidence, and he was eventually convicted of the crimes charged. He thereafter appealed, with the Supreme Court of West Virginia finding that the admissibility of the notebook was governed by Section 61-8B-1 of the West Virginia Code, which provides that

In any prosecution under this article evidence of specific instances of the victim’s sexual conduct with persons other than the defendant, opinion evidence of the victim’s sexual conduct and reputation evidence of the victim’s sexual conduct shall not be admissible: Provided, That such evidence shall be admissible solely for the purpose of impeaching credibility, if the victim first makes his or her previous sexual conduct an issue in the trial by introducing evidence with respect thereto.

The court then cited to its prior opinion in State v. Guthrie, 518 S.E.2d 83, 96 (W.Va. 1999), in which it determined that the purpose of this statute is “to protect the victims of sexual assault from humiliating and embarrassing public fishing expeditions into their sexual conduct; to overcome victims’ reluctance to report incidents of sexual assault; and to protect victims from psychological or emotional abuse in court as the price of their cooperation in prosecuting sex offenders.”

At the same time, however, the Guthrie court recognized that “despite these very important goals, evidence of sexual conduct may still be admissible despite the Rape Shield statute where the exclusion of the evidence violates a defendant’s due process rights.” The court then noted that

The test used to determine whether a trial court’s exclusion of proffered evidence under our rape shield law violated a defendant’s due process right to a fair trial is (1) whether that testimony was relevant; (2) whether the probative value of the evidence outweighed its prejudicial effect; and (3) whether the State’s compelling interests in excluding the evidence outweighed the defendant’s right to present relevant evidence supportive of his or her defense. Under this test, we will reverse a trial court’s ruling only if there has been a clear abuse of discretion.

Applying this test, the Jonathan B. found just such an abuse of discretion:

We find that the notebook is relevant evidence for the purpose of evaluating M.B.’s credibility. In the notebook, which Jonathan B. asserts was written after the alleged rape, M.B. stated that she had only ever had sexual intercourse with one person: “Chris.” As noted supra, in this case, where the State’s case relies almost completely on the testimony of M.B., the evidence is highly probative for Jonathan B.’s defense because the notebook was supposedly created after the alleged rape occurred. The prejudicial value of the evidence is low, as the purpose of admitting the evidence is not to imply promiscuity, but to attack M.B.’s credibility. In this way, the evidence is not of the type the Rape Shield statute was intended to exclude. In sum, we find that the balance of interests in this case weighs in favor of Jonathan B., and therefore, the evidence is admissible, subject to proper authentication.

That’s the extent of the analysis contained in the body of the court’s opinion. Strangely, seemingly the most cogent argument against admission was relegated to the following footnote:

FN18. The Court is very sensitive to the nature of this evidence. In no way does this Court intend to imply through this opinion that, where a victim’s first sexual experience is during a rape, the victim would necessarily consider the rape as affecting his or her virginity. We also do not suggest that a rape victim would consider his or her attacker as a sexual partner. Furthermore, we recognize that a rape victim may wish to hide the fact that he or she was raped from others. However, given the nature of the evidence in this particular case, we find that it is within the province of the jury to weigh the probative value of the evidence as it concerns the credibility of the alleged rape victim, M.B.

I’m having a pretty hard time reaching the same conclusion as the court. Instead, I find it pretty damned plausible that a young girl would not consider two sexual assailants her (first) sexual partners and/or would not want to include this experience in her notebook for a variety of reasons. Accordingly, I don’t see how the notebook entry had much relevance.

Next, let’s look at the second Guthrie factor: prejudicial effect. The court concluded that the prejudicial effect of the evidence was low because it was being used to attack credibility and not to prove promiscuity. But why wouldn’t the jury use the notebook entry as evidence of promiscuity? The entry was evidence that the alleged victim, a young girl, engaged in repeated sexual acts with another young man. I thus don’t see how the evidence is any less prejudicial than typical rape shield evidence of an alleged victim’s other sexual partner(s).

Moreover, as recognized by the court itself, there is a strong potential that the alleged victim did not record the sexual assault in her notebook for legitimate reasons. Thus, there was an additional possibility of high prejudicial effect if the jury determined her to be a liar when she was nothing of the sort.

I admit, though, that both of these first two Guthrie factors are debatable, and I’m not going to chastise the court for reaching the conclusions that it reached with regard to them. What does seem clear, though, is that the relevance of the diary entry was somewhat borderline, which the court itself recognized in the aforementioned footnote.

And what that means is that the third Guthrie factor was quite important. Even if the court found that the defendant satisfied the first two Guthrie factors, it could still deem the diary entry inadmissible if “the State’s compelling interests in excluding the evidence outweighed the defendant’s right to present relevant evidence supportive of his or her defense.”

Let’s again go back to Guthrie to look at those interests. According to Guthrie, the rape shield rule is designed “to protect the victims of sexual assault from humiliating and embarrassing public fishing expeditions into their sexual conduct; to overcome victims’ reluctance to report incidents of sexual assault; and to protect victims from psychological or emotional abuse in court as the price of their cooperation in prosecuting sex offenders.”

What is sifting through a young girl’s diary, discovering an entry mentioning a sexual partner, and reading that entry in open court to prove that she’s a liar if not a humiliating and embarrassing public fishing expedition into her sexual conduct? If a young victim were deciding whether to come forward and raise allegations of a sexual assault, how reluctant would she be to do so if she was aware of the conclusion of the Jonathan B. court? And how much psychological and emotional abuse will M.B. suffer in Jonathan B.’s retrial when she has to take the witness stand and explain her diary entry against a rigorous defense cross-examination that tries to paint her as a liar who made up allegations of sexual assault?

As I said above, I’m not going to chastise the court for its conclusions with regard to the first two Guthrie factors. But I sure as hell am going to chastise it for its failure to use the third Guthrie factor to recognize the effect that the admission of the diary entry would have on M.B. as well as future sexual assault victims deciding whether to press charges against their assailants.

-Colin Miller

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