Improper Relations?: Supreme Court of Nebraska Finds Rape Shield Rule Inapplicable to Relationship Evidence
Federal Rule of Evidence 412 provides in relevant part that
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;
(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C) evidence whose exclusion would violate the defendant’s constitutional rights.
All states, including Nebraska and Minnesota, have state counterparts to this federal rape shield rule. And yet, in recent opinions issues mere days apart, courts in these states reached opposite conclusions in cases with very similar factual contexts. So, which court was right. Today, let’s look at the case out of Nebraska.
In State v. Lavalleur, 289 Neb. 102 (Neb. 2014), Curtis H. Lavalleur was charged with attempted first degree sexual assault. At trial,
The complaining witness, M.J., testified that in August 2012, she was working at a used-car dealership at which Lavalleur was the assistant manager. They socialized outside of work but were not intimate. Lavalleur said that in July 2012, he told M.J. that he was developing feelings for her and that if the feelings were not reciprocal, they should distance themselves. M.J. told him she wanted to just be friends.
On August 17, 2012, Lavalleur and M.J. planned to repossess a vehicle together but changed their minds because it was too risky. Sometime before midnight, M.J. discovered that she was locked out of her apartment and asked Lavalleur to pick her up. M.J. testified that she had smoked marijuana before calling Lavalleur and wanted to drink at his house.
M.J. went on to testify that the night ended with Lavalleur attempting to sexually assault her. In response, Lavalleur wanted to present evidence concerning how the night started. Specifically,
Lavalleur explained that he wanted to show that M.J. had an intimate relationship with a third party with whom she had a fight on August 17, 2012. Lavalleur argued that the relationship showed that M.J. had a motive to falsely report a sexual assault. Lavalleur stated that he would not question M.J. about her sexual conduct but might ask whether the relationship was intimate.
The trial court, however, deemed this evidence inadmissible under Nebraska’s rape shield rule, and Lavalleur was ultimately convicted. On appeal, the Supreme Court of Nebraska reversed, concluding
that M.J.’s relationship with Sable was not evidence of “sexual behavior” or “sexual predisposition.” Thus, the court erred in prohibiting Lavalleur from cross-examining M.J. about the relationship under § 27–412(1). In their ordinary meanings, “‘sexual behavior’ refers to specific instances of conduct and ‘sexual predisposition’ refers to more generalized evidence in the form of opinion or reputation testimony about what we would often call ‘character.'” Questioning about the existence of a relationship between the complaining witness and a third party does not, by itself, implicate either form of evidence regulated by § 27–412:
If questioning about this subject were to lead to evidence or questions about details of particular acts, encounters, or practices, then such evidence and quests are indeed covered by rape shield legislation….On the other hand, it seems equally clear that the fact that the complaining witness is in an ongoing relationship, particularly if it entails living together, an engagement, or some other form of commitment, would not ordinarily be described as sexual conduct even if the relationship involves ongoing sexual intimacy. Ordinary notions of privacy would not be offended by questions or evidence disclosing such relationships and some routine details, such as how often the people see each other or how long they have lived together, and even the basic question whether the relationship includes sexual intimacy.16
The testimony Lavalleur sought from M.J. did not stray into the sexual acts performed with her partner. Nor was it an appeal to the jurors’ sexual mores or an attempt to inflame perceived prejudices. Lavalleur sought to establish that M.J. had a motive to falsify her accounting of the events of August 17, 2012. Her relationship with Sable and the strength of their bond—including whether they were intimate—are relevant to M.J.’s motivation to report a sexual assault. Her testimony would not amount to proof of her sexual behavior, involve a “propensity inference based on sexual acts,” or be a “significant invasion of [her] personal privacy.”