The Court of Appeals decided two rape shield cases this month -- State v. Cook and State v. Adu -- and Cook, in particular, is a good illustration of how protective our courts are of the privacy of alleged victims of sexual assaults. North Carolina's rape shield law, N.C. R. Evid. 412, prohibits the introduction of any evidence about "sexual behavior of the complainant" other than the sexual acts at issue in the case unless the evidence falls within one of four exceptions. By far the most commonly invoked exceptions are (1) for previous sexual contact between the complainant and the defendant, and (2) for "evidence of specific instances of sexual behavior offered for the purpose of showing that the act or acts charged were not committed by the defendant." The latter exception, by its terms, seems potentially broad enough to swallow the rule, but in practice it comes up most frequently when the defendant wants to introduce an alternate explanation for physical evidence of a sexual assault. For example, in Cook, a stepfather was charged with raping his stepdaughter, and a physician testified for the state that the complainant's hymen had scarring consistent with past penetration. The defendant sought to introduce evidence that the complainant had sex with a boyfriend as an alternate explanation for the scarring. Plainly, that evidence falls within the scope of the rape shield rule, but the defendant argued that it also fell within the scope of the second exception. The trial court didn't admit the [...]
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