Federal Evidence Review

The Eighth Circuit concludes that FRE 412(a)'s exclusion of evidence of a victim's “sexual behavior” also precludes evidence of a victim's expression of his or her sexual desires or thoughts, in United States v. Papakee, 573 F.3d 569 (8th Cir. July 17, 2009) (Nos. 08-2032, 08-2037)

FRE 412 was not part of the original evidence rules adopted by Congress in 1975. The rule was adopted by Congress in 1978 and mandated exclusion of evidence of the sexual history of a victim in a sexual assault trial when, for example, it is offered by the defendant as proof of the victim's consent. As described by the proponent of the legislation for FRE 412, the reason for the measure was that:

“Ms. HOLTZMAN. Too often in this country victims of rape are humiliated and harassed when they report and prosecute the rape. Bullied and cross-examined about their prior sexual experiences, many find the trial almost as degrading as the rape itself. Since rape trials become inquisitions into the victim’s morality, not trials of the defendant’s innocence or guilt, it is not surprising that it is the least reported crime. It is estimated that as few as one in ten rapes is ever reported.”

124 Cong. Rec. H11945 (daily ed. Oct. 10, 1978).

In the Eighth Circuit case, defendants Papakee and Blackcloud were convicted of committing sexual abuse against a Native American in Indian country. Both defendants lived with the victim and “[e]very day, the three drank heavily, to the point of intoxication” when the sexual abuse incident occurred. At the trial, defendant Papakee

“sought to introduce testimony from Wesley Sebetka, a deputy in the Tama County Sheriff's Office, that while he was interviewing [victim] L.D. about the sexual abuse, L.D. told him that he was 'cute' and asked him if he wanted to 'crawl into bed' with her. The district court ruled that the proffered testimony was inadmissible under Federal Rule of Evidence 412 and, alternatively, under Rule 403.”

Papakee, 573 F.3d 572.

After the jury convicted the defendants, the exclusion of this evidence was challenged on appeal. The defendant contended that FRE 412 allowed for the admission of the deputy's testimony “because her statement that the deputy was 'cute' and her proposal that he 'crawl into bed' with her” were thoughts and not “sexual behavior” or evidence of “sexual predisposition” precluded by the rule.

The Eighth Circuit construed the scope of the exclusion by examining the terms “sexual behavior” and rejected this argument:

“[T]he district court properly excluded the disputed testimony under Rule 412. The testimony tended to show that L.D. propositioned Sebetka for sex within a short time after the alleged assault by Papakee and Blackcloud. We agree with the district court that a sexual proposition is 'other sexual behavior' within the meaning of Rule 412(a)(1). The ordinary meaning of 'behavior' extends to the manner in which a person conducts herself, Webster's Third New International Dictionary 199 (2002), and when a person undertakes conduct aimed at engaging in sexual activity, that conduct is naturally understood to be 'sexual behavior.' There is no reason to believe that the rule is limited to sexual intercourse or sexual contact. To the contrary, the advisory committee's notes explain that the word 'behavior' should be construed to include 'activities of the mind,' such as fantasies or dreams. If a person's unexpressed desire to engage in sexual activity is inadmissible, then surely her expression of that desire to another person also comes within the scope of the rule.”

Papakee, 573 F.3d 573 (citing FRE 412 ACN; Wilson v. City of Des Moines, 442 F.3d 637, 639-40, 643-44 (8th Cir. 2006) (in sexual harassment case, concluding that female employee's statements about vibrators and male sex organs constituted “sexual comments and behavior” that was governed by FRE 412).

The circuit also rejected the defense contention that the evidence would be admissible under FRE 412(b)(1)(C), which provides an exception to the exclusion when it would violate the constitutional rights of the defendant. The circuit did not accept the defense argument that the exception would apply as a result of the defendant's rights under the Sixth Amendment Confrontation Clause. According to the circuit:

“A restriction on an accused's right to introduce evidence may not be arbitrary or disproportionate to the purpose that the restriction is designed to serve, but that principle was not violated here. Rule 412 serves important purposes of preventing harassment or embarrassment of sexual abuse victims, and the proffered evidence was of little or no probative value.”

Papakee, 573 F.3d 573 (citing Michigan v. Lucas, 500 U.S. 145, 151 (1991) (vacating and remanding because preclusion of evidence of defendant's own past sexual conduct with victim for defendant's failure to comply with notice-and-hearing requirements of Michigan's rape-shield statute was not per se violation of Sixth Amendment); United States v. Bordeaux, 400 F.3d 548, 558-59 (8th Cir. 2005) (“This restriction [of FRE 412] does not violate Mr. Bordeaux's constitutional right to introduce evidence in his defense because it is not arbitrary or disproportionate to the purpose it is designed to serve. The restriction (i.e., the exclusion) is not arbitrary because there exists a reasonable explanation for it-the prevention of harassment or embarrassment of [victim] AWH. Nor is the exclusion disproportionate to its purpose.”)).

The circuit noted that the defendant contended that the evidence of the victim's statements to the deputy was admissible evidence of “her intoxicated state” at the time she talked with him and “was relevant to her ability to perceive and recall the events of that evening”. However, because the trial court allowed in “testimony that L.D. was intoxicated when she met with” the deputy, exclusion of the victim's “sexual proposition” was not erroneous because it “had little, if any, relevance to the question whether L.D. was sexually abused” by the defendants. Papakee, 573 F.3d 573 .

Papakee suggests the propriety of a reading of FRE 412 that is consistent with the intent expressed by the congressional authors of the rule, that sexual abuse trials not devolve into “inquisitions into the victim’s morality, not trials of the defendant’s innocence or guilt” of the charged offense.