Improper Relations, Take 2: Nebraska Court Finds Rape Shield Rule Applicable to Relationship Evidence

Yesterday, I posted an entry on this blog about State v. Lavalleur, 289 Neb. 102 (Neb. 2014), in which the Supreme Court of Nebraska found that the trial court erred in finding that evidence of a sexual assault victim’s relationship with a third person was inadmissible under Nebraska’s rape shield rule. According to the court, this relationship evidence was (1) beyond the scope of the rape shield rule because it was not evidence of “sexual behavior” or “sexual predisposition;” and (2) relevant because a person in a relationship with a third person has a motive to claim that her sexual act with someone else was nonconsensual as opposed to consensual. Today, let’s look at the opinion of the Court of Appeals of Minnesota in State v. Kegg, 2014 WL 4671097 (Minn.App. 2014).

In Kegg, Conrad Kegg was convicted of first-degree criminal sexual conduct. On appeal, he claimed 

that the district court abused its discretion by denying his request to cross-examine the victim, S.B., about her relationship with a man, A.G, who was in prison during the alleged sexual assault. Kegg argue[d] that S.B. engaged in consensual intercourse with him and that her relationship with A.G. provided an explanation for why S.B. would fabricate a sexual-assault allegation. The district court prohibited the evidence as inappropriate prior-sexual-conduct evidence under Minnesota Rule of Evidence 412.

Here’s how the Court of Appeals handled the argument:

Rule 412 provides that prior sexual conduct of a sexual-assault victim with another person is admissible only for the purpose of “establish[ing] a common scheme or plan of similar sexual conduct under circumstances similar to the case at issue” and only when it is “relevant and material to the issue of consent.” Minn. R. Evid. 412(1)(A)(i). Kegg made no claim that S.B.’s prior and current relationship with A.G. had any bearing on whether she consented in this instance. The district court therefore did not abuse its discretion by prohibiting evidence of S.B.’s sexual conduct with another man.

Kegg argues that he was not attempting to elicit prior sexual conduct, just the fact S.B. was in a relationship. The state responds that S.B.’s relationship with A.G. was irrelevant to the issue of fabrication and consent. We agree. Evidence is relevant only if it tends “to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401. There was no evidence that A.G. and S.B. were dating at the time of the alleged sexual assault or that A.G. was even aware of a relationship between Kegg and S.B., much less a sexual one. This evidence is irrelevant, and therefore inadmissible. We see no error in the district court’s decision to prohibit the evidence.

Okay, this is pretty confusing. From reading the above, it is my guess that S.B. and A.G. had a relationship before and after the alleged sexual assault but not during it. This is gleaned from the fact that the appellate court references “S.B.’s prior and current relationship with A.G.” and the fact that “[t]here was no evidence that A.G. and S.B. were dating at the time of the alleged sexual assault.” My assumption would be that S.B. and A.G. were dating until A.G. went to prison, put the relationship on hold while A.G. was in prison, and the picked up the relationship again when he was released from prison. 

Now, maybe I’m reading the facts wrong, and there was never a relationship between A.G. and S.B., which would make the court’s ruling clearly correct. But if my reading is right, I don’t see how the proffered evidence was irrelevant. That’s not to say it should be deemed admissible because its probative value could be substantially outweighed by the danger of unfair prejudice, etc., under Rule 403. That said, in Olden v. Kentucky, the United States Supreme Court found that an alleged victim’s adulterous affair with a third person was admissible to show a motive to lie about whether sex with two other men was consensual.

But was Olden correct? I agree that a relationship with a third person is logically relevant to the issue of whether an alleged victim lied about a sexual assault by a third person. But is there enough probative value in such evidence to survive Rule 403 scrutiny? I’m not sure.

-CM