Five Exceptions to Rape Shield Law
by Gary Muldoon
The Rape Shield Law, CPL 60.42, is a rule of evidence. A complainant’s chastity or lack thereof is typically of little relevance with a sex offense charge, thus the complainant’s sexual history is normally inadmissible. People v Halter, 19 NY3d 1046 (2012).
The evidentiary bar also applies where a victim is deceased. People v Setless, 213 AD2d 900 (3d Dept 1995).
The rape shield law, by its terms, applies to Penal Law article 130 crimes. A related statute, CPL 60.43, applies to prosecutions under other sections of the Penal Law. A rape-shield law for juvenile delinquency cases is contained in Family Court Act 344.4.
The rape shield law provides five exceptions where evidence of the complainant’s history may be ruled admissible. CPL 60.42(1) to (5). See 35A NY Jur 2d, Criminal Law: Substantive Principles and Offenses §§ 724 et seq.
The exceptions are:
• conduct involving the defendant. People v Badine, 301 AD2d 178 (2d Dept 2002); People v Westfall, 95 AD2d 581 (3d Dept 1983).
In one case, the trial judge properly precluded questioning the complainant about an incident in which she supposedly engaged in oral sex with another person while defendant was present. This ruling was affirmed on appeal: the incident did not involve her prior relationship with the accused. People v Goodwin, 179 AD2d 1046 (4th Dept 1992).
• previous prostitution conviction within three years of the charged offense. People v Curry, 11 AD3d 150 (1st Dept 2004).
• rebutting evidence by the prosecution of the victim’s failure to engage in sexual activity during a particular period of time. People v James, 98 AD2d 863 (3d Dept 1983).
• to rebut medical evidence that defendant is the cause of pregnancy or disease, or source of semen in the victim, People v Labenski, 134 AD2d 907 (4th Dept 1987), including injuries allegedly caused by defendant, People v Jovanovic, 263 AD2d 182 (1st Dept 1999).
• interest of justice. This broader exception vests discretion in the trial judge. An offer of proof or other hearing should be allowed, with the court making findings on the record, whether the evidence is ruled admissible or inadmissible. People v Williams, 81 NY2d 303 (1993).
The Jovanovic case
In one well-known case, People v Jovanovic, 263 AD2d 182 (1st Dept 1999), there were email messages between complainant and defendant, in which the complainant described consensual sadomasochistic sexual encounters with a third party. These messages were redacted at trial. On appeal, this was found to be error, for several reasons. The messages amounted to prior statements of the complainant, rather than her prior sexual encounters, and thus was not within the rape-shield law. The statements were not offered for their truth.
Further, the intimate nature of the statements in Jovanovic amounted to prior sexual conduct with the defendant, and thus admissible under the rape-shield law’s first exception.
The statements were also admissible under the second exception: the prosecution had contended that defendant caused complainant’s bruising, and the messages indicated that the complainant and defendant were engaged in a sadomasochistic relationship with another. Under the fourth exception, the term "disease" in the statute extends to injuries allegedly caused by a defendant.
Finally, the messages were relevant under the "interests of justice" exception for several reasons: to establish that complainant conveyed her interest in engaging in the sexual practices with him; to establish defendant’s understanding and beliefs of complainant’s willingness, and to establish the complainant’s possible motive to fabricate. The testimony was relevant to the state of mind of both the complainant (as to her consent) and defendant (as to his reasonable beliefs of complainant’s intentions), and was central to the defense.
Redaction and confrontation
The trial judge’s ruling in Jovanovic, to redact the email messages, "essentially gutted" defendant’s right to testify in his own defense, as it prevented him from offering any evidence justifying an asserted belief that the complainant had indicated a desire to participate in sadomasochism with defendant. While the rape-shield law does not violate the constitutional right of confrontation and to present a defense, People v Williams, supra; People v Segarra, 46 AD3d 363 (1st Dept 2007); People v Baldwin, 211 AD2d 638 (2d Dept 1995), the trial ruling violated the right of confrontation. "Where the precluded evidence is highly relevant, however, the deprivation of fundamental constitutional rights cannot be justified merely by the protection of the complainant from an attack on her chastity."
Failure to exercise discretion
While a judge may exclude proffered evidence under the rape shield law, the failure to exercise discretion in determining admissibility under an exception is error. People v Becraft, 198 AD2d 868 (4th Dept 1993).
Beyond the exceptions
Separate from the five statutory exceptions are areas where the rape shield law does not apply. The Second Department in Jovanovic differentiated "between evidence of prior sexual conduct (to which the statute expressly applies) and evidence of statements concerning prior sexual conduct . . ." (emphasis in original) Cf. People v Curry, 11 AD3d 150 (1st Dept 2004) (complainant’s statement inadmissible).
The preclusion of evidence under the rape shield law does not necessarily bar the defense from exploring related issues. Where a defendant was barred from questioning the complainant’s sexual relationship with a boyfriend, the ruling did not bar exploring other aspects of that relationship. People v Halbert, 175 AD2d 88 (1st Dept 1991), affirmed 80 NY2d 865 (1992).
Additionally, previous false sexual accusations by the complainant against the defendant are admissible to impeach the complainant and to show bias. People v Harris, 151 AD2d 981 (4th Dept 1989). See also, People v Hunter, 11 NY3d 1 (2008) (Brady violation).
© 2012 by Gary Muldoon