The recent opinion of the Court of Appeals of Minnesota in State v. Bauer, 2009 WL 112842 (Minn.App. 2009), raises an essential question: What kind of rule is the Rape Shield Rule? And I think that Minnesota courts have answered that question correctly.
In Bauer, Jeffrey Bauer appealed from his convictions on two counts of criminal sexual conduct that he allegedly committed against his neighbor, A.E.B., while she was less than sixteen years old. And one of the grounds for his appeal was that the trial court erred by precluding him from presenting evidence that A.E.B. had allegedly made prior false allegations of sexual abuse.
The trial court had deemed this evidence inadmissible pursuant to Minnesota’s Rape Shield Rule, Minnesota Rule of Evidence 412, which states in relevant part that
In a prosecution for acts of criminal sexual conduct, including attempts or any act of criminal sexual predatory conduct, evidence of the victim’s previous sexual conduct should not be admitted nor shall any reference to such conduct be made in the presence of the jury, except by court under the procedure provided in rule 412. Such evidence can be admissible only if the probative value of the evidence is not substantially outweighed by its inflammatory or prejudicial nature and only in [certain] circumstances.
Now, proving prior false allegations of sexual abuse is not one of the enumerated exception/circumstances in Minnesota Rule of Evidence 412, but the Court of Appeals noted that it had previously read such an exception into the rule in prior precedent. See State v. Goldenstein, 505 N.W.2d 332, 340 (Minn.App. 1993). The problem for Bauer, however, was that the Court of Appeals rejected his argument that the trial court improperly placed the burden of proof on him to prove that A.E.B. had in fact made prior false allegations and affirmed the trial court’s ruling that he failed to fulfill his burden. According to the court, “the burden is on a defendant to show that a victim’s sexual history is relevant and should be admitted despite the rape-shield rule.”
As I noted above, I think that the court properly placed the burden on the defendant, but it certainly was not a foregone conclusion. Like its federal counterpart, Federal Rule of Evidence 412, Minnesota Rule of Evidence 412 states that an alleged victim’s previous sexual conduct in a criminal case is generally inadmissible unless it meets some exception and passes the Rule 403 balancing test in that its probative value is not substantially outweighed by the danger of unfair prejudice that it creates.
The problem that this creates for the court’s conclusion is that Rule 403 is a Rule that presumes the admissibility of evidence and traditionally places the burden of proof on the party opposing its admission. Indeed this point is driven home by the civil exception to the federal Rape Shield Rule, which provides in relevant part that
In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.
According to the Advisory Committee’s Note to this Rule,
This test for admitting evidence offered to prove sexual behavior or sexual propensity in civil cases differs in three respects from the general rule governing admissibility set forth in Rule 403. First, it reverses the usual procedure spelled out in Rule 403 by shifting the burden to the proponent to demonstrate admissibility rather than making the opponent justify exclusion of the evidence.
An obvious implication that one could draw from this language is that the burden of proof is on the prosecution in a criminal case to prove that one of the exceptions to the Rape Shield Rule does not apply. But this takes me back to the question that opened this post: What kind of rule is the Rape Shield Rule?
In placing the burden of proof on the defendant in Bauer, the Court of Appeals relied upon its previous opinion in State v. Crims, 540 N.W.2d 860 (Minn.App. 1995), which placed the burden on the defendant because “evidence of sexual activity with third persons cannot withstand a rule 403 weighing unless special circumstances enhance its probative value.” In other words, Rape Shield Rule rulings are not typical Rule 403 rulings.
And, according to Crims, the reason that they are not typical is because, unlike what some courts have found, Rape Shield Rules are not “principally…a means of excluding evidence that might embarrass sexual assault victims, essentially forming an exception to the general practice of admitting all relevant evidence.” Instead, they “serve to emphasize the general irrelevance of a victim’s sexual history, not to remove relevant evidence from the jury’s consideration.”
Based upon everything I have read about Rape Shield Rules, I agree with the Court of Appeals of Minnesota. Rape Shield Rules are not only in place because we want to prevent the embarassment of alleged victims but also because we have recognized that an individual’s prior sexual acts usually tell us nothing about whether they consented to the sexual act at issue. Now, there are some exceptions to the general rule, but they are just that, exceptions, and the onus should be on the defendant to prove such special circumstances.
This is a fantastic post, Colin – really informative.
I may be misunderstanding the facts of the case, since my only knowledge of it comes from this post. However, your conclusion (and the court’s) seems bizarre: making false allegations of sexual abuse IS NOT sexual conduct. It’s just lying. The rape shield law excludes evidence of the victim’s past sexual conduct–but how, and why, could that shield possibly extend to evidence that the victim has previously made false police reports?
The fact that the police reports were about sexual abuse doesn’t change the basic point: evidence of making false police reports is evidence of dishonesty. The content of the police reports is not per se even relevant–the point is that the person brought false allegations in the past, and thus her allegations in the present case may be suspect. Would this evidence have been excluded if she had made false allegations that someone beat her up, mugged her, stole her car, etc.? Of course not. Why does the content of the police report bring an act that has nothing to do with her sexual conduct–namely, the act of lying to the police–under the protection of the rape shield law?