The Rape Shield Statute: Its Limitations and Recent Application

North Carolina adopted a rule in 1979 to limit the introduction of evidence about the sexual behavior of an alleged victim in criminal trials for rape and other sexual offenses. Before that so-called rape shield rule was enacted, evidence of prosecuting witness’s general reputation for unchastity could be introduced in a rape trial to attack the witness’s credibility and to show the likelihood of his or her consent. See, e.g., State v. Banks, 295 N.C. 399 (1978), overruled on other grounds, State v. Collins, 334 N.C. 54 (1993).

A 1977 report on sexual assaults by the Legislative Research Commission recommended adoption of the rape shield rule “to improve the conduct of sexual assault prosecutions” in the state. Detailed Comments on Draft Law, Legislative Research Commission, Report to the 1977 General Assembly of North Carolina: Sexual Assaults 86 (1977). The commission explained that such prosecutions were “too often conducted in a way that embarrasses or intimidates the victim beyond the defendant’s legitimate interest in a fair trial.” Id. The “chief evil” was the “use of evidence of irrelevant sexual behavior to influence the court and jury, not because it is logically related to any material issue in the proceeding, but because it creases prejudice against the person whose sexual behavior is so demonstrated.” Id. The rule adopted in 1979 is codified in substantially the same form today as Rule 412 of the North Carolina Rules of Evidence.

Nearly forty years after its adoption, the appellate courts continue to refine the scope of the rape shield statute. Several recent cases explore the rule’s limitations and the analysis a trial court must employ when a defendant charged with a sexual offense seeks to admit evidence regarding the prosecuting witness’s sexual conduct.

The rule. Rule 412 governs the admission of evidence regarding the sexual behavior of the complainant in a criminal case alleging rape, a sex offense, or a lesser included offense of either.  Sexual behavior is defined as sexual activity of the complainant other than the sexual act which is at issue in the charged crime.

The rule provides that sexual behavior of the complainant is not relevant unless the behavior fits into one of the following four categories:

1. Sexual behavior between the complainant and the defendant;
2. Specific instances of sexual behavior that tend to show that the charged act was not committed by the defendant;
3. A pattern of distinctive sexual behavior that closely resembles the defendant’s version of events and, as such, tends to prove that the complainant consented to the act charged or behaved in a manner as to lead the defendant reasonably to believe the complainant consented; or
4. Sexual behavior offered as the basis of expert psychological or psychiatric opinion that the complainant fantasized or invented the act charged.

Until a court determines that evidence of sexual behavior is relevant under one of these categories, no one may refer to this behavior before the jury and no evidence of it may be introduced.

A defendant who wishes to introduce evidence regarding the sexual behavior of the complainant must apply to the court for an in camera hearing to determine the admissibility of the evidence. The hearing must be transcribed. The court must consider the defendant’s offer of proof and the arguments of counsel, including counsel for the complainant, to determine the extent to which such evidence is relevant.

Its limitations. Soon after the rape shield rule was enacted, it was challenged on grounds that it violated a defendant’s sixth amendment right to confront the witnesses against him. The state supreme court in State v. Fortney, 301 N.C. 31 (1980) rejected that challenge, explaining in part that the statutory rule was “nothing more than a codification of this jurisdiction’s rule of relevance as that rule specifically applies to the past sexual behavior of rape victims” and was “not a revolutionary move to exclude evidence generally considered relevant in trials of other crimes.” Id. at 37, 42.

Two years later, the court clarified in State v. Younger, 306 N.C. 692 (1982), that the rape shield statute was not the “sole gauge for determining whether evidence is admissible in rape cases.” Id. at 698. The trial court in Younger entered an order denying the defendant, who was charged with rape, the right to cross-examine the prosecuting witness about a statement she made to the examining physician the night of the alleged rape about when she last had sex. The witness told the doctor that she had last had sex a month earlier. She testified at trial that she had sex with the defendant’s roommate on the night of the alleged rape. (The defendant contended that the witness had consented to having sex with him on the night in question.)

The trial court forbade the cross-examination on the basis that it did not fall under any of the four categories set out in the rape shield statute. The supreme court deemed this interpretation of the rule too restrictive: “Unlike some distant sexual encounter which has no relevance . . . other than showing the witness is sexually active, the prior inconsistent statement made by this prosecuting witness has a direct relation to the events surrounding this alleged rape.” Id. at 696.

The court explained that  “impeachment by prior inconsistent statements is a practice invoked in all types of trials against all types of witnesses” and that the rape shield statute “was not intended to act as a barricade against evidence which is used to prove issues common to all trials.” Id. at 697-98.  The fact that the impeachment evidence included a reference to sexual behavior did not bar its admission but did bear on the degree of prejudice that had to be balanced against its probative value. The Younger court proceeded to reverse the defendant’s convictions and order a new trial on the basis that the denial of the opportunity to impeach the witness was highly prejudicial to the defendant’s case.

Recent application. More recently, the court of appeals in State v. Edmonds, 212 N.C. App. 575 (2011), clarified the appropriate analysis for a trial court faced with a proffer of sexual behavior evidence that fails to satisfy a category in Rule 412. The defendant in Edmonds was charged with raping a 15-year-old girl who came to his house to pick up a camera. The defendant said he did not have intercourse with the girl.  At trial, he sought to cross-examine the girl about inconsistent statements she made about her sexual history to the police and to hospital personnel and to introduce medical records containing information about her sexual history. The trial court denied the defendant’s request. The court of appeals upheld the trial court’s determination.

The appellate court explained that considering the admissibility of the evidence under Rule 412 was the first step, but did not end the analysis. After determining that the evidence was not admissible under Rule 412, the court had to consider whether it was nonetheless admissible for impeachment purposes. This involved balancing the probative value of the evidence against its prejudicial effect pursuant to Rule 403.

Three factors reduced the probative value of the impeachment evidence in Edmonds and distinguished it from Younger: (1) the alleged victim in Edmonds did not testify about her sexual history; (2) the testimony the defendant sought to admit in Edmonds involved sexual activity that occurred months before the alleged rape; (3) there was no issue regarding consent in Edmonds. The probative value of this evidence, in the view of the appellate court, did not balance in the positive against its prejudicial effect.

Even more recent appellate court opinions have further defined the parameters governing the admissibility of a prosecuting witness’s sexual conduct.

• In State v. Martin, 241 N.C. App. 602 (2015), the court reversed the defendant’s conviction for sexual offense with a student based on the trial court’s exclusion of evidence that the defendant discovered the alleged victim in the boys’ locker room performing oral sex on football players. The defendant’s defense was that the alleged victim had fabricated the charges against the defendant to prevent others from learning what she was doing in the locker room. The trial court excluded the evidence on the basis that it did not satisfy any of the four categories in Rule 412. The court of appeals noted that when the State’s case is based largely on the credibility of the prosecuting witness, evidence tending to show that the witness had a motive to falsely accuse the defendant is relevant. Motive or bias of a prosecuting witness is an issue common to criminal prosecutions in general. The appellate court concluded that the trial court should have looked beyond Rule 412 to determine whether the evidence was relevant and admissible.

• In State v. Goins, ___ N.C. App. ___, 781 S.E.2d 45 (2015), the court of appeals determined that the trial court erred by refusing to allow the defendant in his trial for numerous sex offenses to cross examine one of the witnesses about statements that the witness was addicted to porn, had an extramarital affair and could not control his behavior because of what the defendant did to him. The court reasoned that the evidence could show that the witness had a motive to fabricate the allegations (to mitigate things with his wife and save his military career) and thus was relevant as to his potential bias. Moreover, because the evidence addressed a direct link between the impeachment and the evidence in question and “emanated from two potentially strong sources of bias,” its probative value outweighed its prejudicial effect.

• Earlier this week in State v. West, __ N.C. App. __, ___ S.E.2d ___ (August 15, 2017), in contrast, the court of appeals concluded that the trial court did not err by excluding evidence about the alleged victim’s sexual history and inconsistent statements. The defendant in West was charged with committing a sexual offense against one of his fellow residents at the Durham Rescue Mission. The defendant, who denied that any sexual encounter occurred, sought to introduce the prosecuting witness’s statements to the police that he had sexually assaulted his half-sister when he was eight or nine years old. The defendant argued the evidence was admissible for impeachment because it was inconsistent with the 20-year-old witness’s previous statements to the police about why and when he was removed from his home as a child. The trial court allowed the defendant to question the defendant about his inconsistent statements but did not allow questions about the prior sexual assault. The court of appeals affirmed the trial court’s decision to exclude the evidence under Rule 403. The court reasoned that the evidence was disturbing and highly prejudicial and was of remote relevance to the offense at issue. DNA evidence corroborating the alleged assault contributed to the court’s conclusion by making the witness’s “inconsistent statements about remote facts less relevant.”

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