In 1975, the Utah Supreme Court said something that every defense attorney should repeat to every juror that watches a rape trial: “[a] rape accusation most always arises from incident which occurs with only two parties present, it is one in which it is easy to accuse but hard to defend, and if accused is convicted, result can be not only long prison term, with resulting serious effects on man’s life, but stigma always remains. State v. Howard
We are getting more and more rape cases lately. Rape allegations are easy to make, and very hard to defend. If you, or a loved one, is accused of rape, you need to contact us immediately.
Assume that a man named Mick, age 26, is accused of rape – and like most rape cases, he admits he had sex with Betty, his accuser, but says it was 100% consensual. He says they were at a bar, both had a lot to drink, then they went to her apartment and had sex. He says it was just “no big deal”.
He also says Betty’s just mad because he didn’t want to be pinned down to just one woman, and he made that clear to Betty the following morning. He’s in jail, and his bail has been set at $100,000. He thought was was supposed to be presumed innocent, but feels everybody just seems to want to be believe Betty. He feels the world is against him – even the fellow inmates are giving him a bad time.
He claims Betty has falsely accused another guy of rape before, too, but that was a couple of years ago. He feels that once a jury hears this, they will know that Betty is the girl that cries wolf just to get attention.
Can Mick show the jury that his accuser, Betty, has made a false rape allegation in the past?
The answer: maybe. Political correctness will certainly be a hurdle for him, but he may get over it.
This is because the trial judge will most likely want to know whether Mick can demonstrate the falseness of the accuser’s prior allegation by what is called “a preponderance of the evidence”, which means by more than 50% proof, unlike proof beyond a reasonable doubt, which is more like 90% (or perhaps higher).
This means that if Mick can’t prove that Betty’s prior allegation was false to the judge chances are the judge will not let the jury ever hear his allegation. So, before the trial starts, there will have to be a mini-trial, which will take place only in front of the judge. And the judge alone gets to exercise his “discretion” to see if such evidence will be admissible (and many people these days feel like the judges are pro-accuser – and it is up to the judge to determine if he is convinced by more than 50% that the prior rape allegation was in fact false).
However, if Mick can prove Betty has indeed lied about rape before, chances are the prosecutor may fold, unless they have more to offer than Betty’s uncorroborated testimony. Emotions on both sides of the fence get very, very hot when these mini-trials take place.
Here is what the Utah Supreme Court said in a case similar that of the case between Mick and Betty in which the judge ruled against the notion of letting the jury know about Betty’s prior rape allegation: “The [judge] exercised reasonable discretion in ruling that any evidence of the prior allegedly false rape accusation [was] inadmissible . . . . First, the trial court did not abuse its discretion in requiring the defendant to prove by a preponderance of the evidence that the accuser made a prior false allegation . . . . Further, the trial court reasonably concluded that . . . its probative value was outweighed by its prejudicial effect. State v. Tarrats, 2005.
When the Court says the “probative value was outweighed by its prejudicial effect”, the Court is saying, “Hey, we can’t let a jury hear that. After all, Betty’s prior claim may have been true, and if the jury hears about the claim, they may just believe Mick simply because Betty was a prior victim, and for all we know, Betty’s first rapist was some how able to beat the system and avoid getting convicted. This would be unfair to Betty and rape victims.”
Of course, if the Court thinks the allegation may likely have been false (the other side of the coin), Mick CAN bring that to the jury’s attention because the “probative value”, or in the other words, the “worth” of the evidence would be greater than the possibility that the jury might just be prejudiced against Betty for hearing it. After all, if it is true, it is arguable that the jury should have every right to become prejudiced against Betty because of it. Remember, it is only unfair prejudice that the Court is seeking to avoid, not all prejudice.
After all, suppose a jury heard testimony from Becky that Louie said to a Mary “You are a fu—– c—!” right before a bullet was fired from Louie’s gun and hit Mary in the leg. It would be very likely Louie was angry and meant to shoot Mary, instead of an accident having occurred. And if the jury heard that, such a statement would be very prejudicial against the Louie, but it would not be unfairly prejudicial, so that type of very prejudicial evidence of what he said would clearly be something the jury should and would hear. Now, if Becky were unsure about what Louie said, and was only guessing Louie said that, the judge may keep it out because the jury could become unfairly prejudiced against Louie for something that Becky was not even sure about. This is why evidence is often argued over before a trial, and only in front of the trial judge that is going to hear the case.
Mick also claims that “Betty is a slut”, and “everybody that knows Betty can testify to that”. He wants the jury to know that he would never have to rape Betty because Betty “always says yes to sex.” Can Mick have people testify about that?
The phrase there is not a snowball’s chance in hell may well apply here. This is because Utah’s Rape Shield law “reflects the recognition that evidence of the victim’s unchastity is ordinarily of no probative value on the issue of whether a rape or sexual assault occurred.” Id. In other words, even if Betty were actually a huge slut, that would not mean that on this ocassion she consented to having sex with Mick.
In other words, the Rape Shield Law in Utah It is sort of like saying just because we all eat every day, and we all enjoy food, that does not mean we would agree to have a meal shoved down our throats. So, a person is not allowed to essentially say to a jury, “Hey, this person has been a slut in the past, which means, she was also a slut on this occasion.” Those days are gone.
The Utah Supreme Court laid out a serious problem with rape cases way back in 1975 in State v. Howard (perhaps Utah’s best known rape case). They said, “[R]ape often goes unreported because rape victims are fearful and unwilling to subject themselves to further torture and that part of that fear is apprehension of embarrassment and humiliation from inquiry into their personal lives, which sometimes has effect of putting them on trial instead of assailant, are important factors to consider and evil should be minimized to whatever extent that can be done consistent with processes of justice.”
For this reason, Utah Rule of Evidence 412 (Rape Shield Law) for the most part bars evidence offered to prove the victim’s sexual behavior or sexual predisposition. So, past sexual behavior by a “victim” is typically off limits in a rape trial, and that “connotes all activities that involve actual physical conduct (i.e. sexual intercourse and sexual contact) or that imply sexual intercourse or sexual contact such as the “birth of an illegitimate child” or “evidence of venereal disease inadmissible”. In fact, the judge can even keep out things like the use of contraceptives, since the use of such implies “sexual activity”). Even things such as the victim’s fantasies or dreams can be excluded. So, rape cases are an uphill battle, that’s for sure, and there are many exceptions to all the things written above.
The news is not all bad for those accused of rape, however. The Utah Supreme Court also said this: [H]owever, there are countervailing considerations which also must be taken into account, including fact that rape accusation most always arises from incident which occurs with only two parties present, it is one in which it is easy to accuse but hard to defend, and if accused is convicted, result can be not only long prison term, with resulting serious effects on man’s life, but stigma always remains. State v. Howard, 544 P.2d 466 (Utah 1975), and the Utah Rules of Evidence cite to this case as a case that is still good law.
For the defendant, there is some good news: Evidence of specific instances of sexual behavior with persons other than the accused may be admissible if offered to prove that another person was the source of semen, injury or other physical evidence. Also, the rule on this says that “evidence of specific instances of sexual behavior involving the alleged victim and the accused may be admissible if offered to prove consent, or if offered by the prosecution. This exception might admit evidence of specific sexual activities between the alleged victim and the accused, as well as statements in which the alleged victim expressed an intent to engage in sexual intercourse with the accused, or voiced sexual fantasies involving the specific accused. Utah R. Evid. 412
Rape cases, as you can see, can become very complex and frustrating for everybody – and this blog has only dealt with the tip of the iceberg.
Here is Utah’s rape statute:
76-5-402. Rape.
(1) A person commits rape when the actor has sexual intercourse with another person without the victim’s consent.
(2) This section applies whether or not the actor is married to the victim.
(3) Rape is a felony of the first degree, punishable by a term of imprisonment of:
(a) except as provided in Subsection (3)(b) or (c), not less than five years and which may be for life;
(b) except as provided in Subsection (3)(c) or (4), 15 years and which may be for life, if the trier of fact finds that during the course of the commission of the rape the defendant caused serious bodily injury to another; or
(c) life without parole, if the trier of fact finds that at the time of the commission of the rape the defendant was previously convicted of a grievous sexual offense.
(4) If, when imposing a sentence under Subsection (3)(b), a court finds that a lesser term than the term described in Subsection (3)(b) is in the interests of justice and states the reasons for this finding on the record, the court may impose a term of imprisonment of not less than:
(a) 10 years and which may be for life; or
(b) six years and which may be for life.
(5) The provisions of Subsection (4) do not apply when a person is sentenced under Subsection (3)(a) or (c).
(6) Imprisonment under Subsection (3)(b), (3)(c), or (4) is mandatory in accordance with Section 76-3-406.