When an individual has been charged with the crime of rape or sex assault in Denver, Colorado, the alleged victim’s prior sexual history may be valuable information for the criminal defense attorney. Historically, criminal defense attorneys would use an alleged victim’s sexual history, if deemed to be promiscuous, to attack the veracity of the claims against their clients. Criminal defense attorneys would cross-examine the alleged victim on her promiscuous sexual history in an attempt to convey to the jury the defense theory that the alleged sexual contact between the alleged victim and the defendant was consensual. The argument to the jury would typically be something along the lines of “because the alleged victim has had a lot of consensual sexual contact with numerous people, then you should infer that the sexual contact with the defendant was also consensual.” While in many cases, especially with other evidence to bolster the theory, this may have been a very valid defense. Unfortunately, criminal defense attorneys came to abuse this argument by using such information whenever possible in a rape or sexual assault case. As a result, many women who had actually been sexually assaulted were subject to often harsh, embarrassing and unjustified cross-examinations about their sexual history. Many women who had been sexually assaulted or raped were discouraged from reporting such assaults due to the knowledge that this could happen to them.
State legislatures around the country began addressing this abuse in the 1970s by passing what are known as “rape shield” laws. Colorado’s version of the “rape shield” law was enacted in 1975. In Colorado, the rape shield statute makes an alleged victim’s, or witness’s, sexual history inadmissible in any court proceeding with three exceptions. The first exception is evidence of sexual history with the defendant. The idea behind this exception is that if the alleged victim and the defendant have had prior consensual sexual contact, that the defendant should be entitled to present evidence of that prior consensual sexual contact to support his defense that the sexual contact at issue in his case was also consensual. Thus, a defendant in a sex assault or rape case would be able to present evidence of prior sexual activity with the alleged victim. The second exception to Colorado’s rape shield statute is evidence of sexual activity to show that the defendant did not commit the crime. This exception allows evidence of the alleged victim’s prior sexual conduct showing the source or origin of semen, pregnancy, disease, vaginal injury or other such similar evidence to be admitted to show that the act charged was not committed by the defendant. A good example of the application of this exception is as follows. The alleged victim has accused the defendant of sexually assaulting her by forcing her to have nonconsensual vaginal intercourse. A medical examination of the alleged victim after the alleged sex assault shows that she has vaginal injuries consistent with forced sexual intercourse. The defendant denies having sexual intercourse with the alleged victim. Evidence exists showing that the alleged victim had sexual intercourse with a third party prior or subsequent to the alleged sex assault. In this case, the defendant would be permitted to present this evidence to the jury in order to argue and show that the origin and source of the vaginal injury was the alleged victim’s intercourse with the third party and not the defendant.
The third exception to Colorado’s rape shield statute is the “catch all” exception. The statute, as well as the Colorado Supreme Court, states that evidence of an alleged victim’s prior sexual conduct is admissible when it is “otherwise relevant to a material issue in the case.” Thus, when neither of the first two exceptions to the statute would allow such evidence to be presented, a defendant may attempt to use the third exception by establishing that the evidence is “otherwise” relevant to a material issue in the case against him. However, in order to establish this and get the court to allow such evidence, the statute requires that the defendant first meet significant procedural and evidentiary requirements. The defendant must first file a motion requesting an in camera (behind closed doors) hearing on the admissibility of the evidence. This must be done at least thirty days prior to trial. The defendant must also file an affidavit with the motion that includes an offer of proof as to what the evidence is and why it is relevant to a material issue in the case. If the court finds the motion, affidavit and offer of proof to be sufficient, it may order an in camera hearing be held so that evidence can be heard and that both the defendant and the prosecution may make arguments either supporting or objecting to the admissibility of the evidence. The trial judge then makes a determination of the admissibility of the evidence after the hearing has concluded. It is very difficult for a defendant to meet these procedural and evidentiary hurdles and thus, the third exception is very rarely used to admit evidence of an alleged victim’s prior sexual conduct.
While it may seem that the statute provides a fair and balanced way of addressing both the defendant’s rights in a criminal proceeding against him as well as the historical abuse of this issue by criminal defense attorneys, the courts have not been fair with their application of the third exception to the statute. The Denver criminal defense attorneys at Frankfurt & Trani, P.C., specializing in sex assault and rape cases, have had a number of cases where the trial court should have allowed evidence of an alleged victim’s sexual history to be admitted but did not.
One such example is a sex assault on a child case. The alleged victim was an eleven-year-old girl with no history of consensual sexual conduct. This girl, however, had been sexually assaulted by a third party prior to making the allegations against the defendant. The girl demonstrated precocious knowledge by being able to describe sexual acts allegedly committed by the defendant against her in a manner in which was not normal for the average eleven year old girl with no sexual history. Her descriptions of the acts allegedly committed by the defendant, however, were very similar to the acts committed against her by the third party. The criminal defense attorneys at Frankfurt & Trani attempted to present evidence of the prior sexual assault by the third party to the jury to show that the girl was able to have such precocious knowledge not because she had been sexually assaulted by the defendant, but rather because of the prior sexual assault. The attorneys handling the defendant’s case did not wish to present this evidence to embarrass the girl or to suggest that the alleged sexual conduct between she and their client was consensual. Consent is irrelevant in sex assault on children cases and, in any case, this particular defendant adamantly denied the allegations against him. The criminal defense attorneys wished to present this evidence to counter their concern that the jury would infer that because the girl had precocious knowledge of sexual matters not normal for an eleven year old girl, that she attained this knowledge from being sexually assaulted by their client and that the allegations against him were, therefore, true. The attorneys even offered to forego any questioning of the girl about the prior sexual assault as long as the jury was informed of the fact that it had occurred and its similarity to the allegations against the defendant. Unfortunately, the judge did not agree and determined that this evidence was not relevant to a material fact in the case. As a result, the court did not allow the evidence to be presented to the jury. Despite the trial judge’s ruling on this matter a not guilty verdict was entered in favor of the defendant after a five-day trial.
While the outcome in the case illustrated above turned out favorable for the defendant, what would the consequences of such a ruling have been if the outcome had been different? Had the jury found the defendant guilty of sex assault on a child in this case, a sentence of ten years in prison and up to the remainder of the defendant’s life would have been imposed. Could the jury have found the defendant guilty at least partially as a result of the very same concerns that the attorneys at Frankfurt & Trani had prior to trial about the girl’s precocious knowledge? It is situations such as this where the rape shield laws have gone too far. Judges throughout Colorado are sacrificing a defendant’s Constitutional rights to due process, to confront witnesses, and to present a complete defense in order to spare alleged victim’s the embarrassment of having to confront a history of sexual conduct that in many cases is very relevant to very serious charges against defendants. While the rape shield law is a necessary component to our criminal justice system, judges must learn to properly apply the law’s intent while maintaining the integrity of a defendant’s right to a fair trial.