Opinion
CR 11-10021.
August 9, 2011
ORDER
Defendant filed a motion pursuant to Fed.R.Evid. 412 to allow evidence of the sexual abuse history and sexual activities of the alleged victims to establish "that a person other than the accused was the source of semen, injury or other physical evidence" and that a person other than the defendant was the source of a victim's or victims' knowledge of sexual matters. The motion came on for hearing on July 25, 2011, with the government appearing by Assistant United States Attorney Mikal G. Hanson and with the defendant appearing in person and with his attorney, Patricia Carlson. The victims were given notice as required under Rule 412(c), were present in the court house, and were represented by James Cerney. One alleged victim testified briefly.
The government has today filed a notice of expert witness (Doc. 34). The proposed expert testimony does not alter the opinions of the court as contained herein.
BACKGROUND
Defendant is charged with two counts of aggravated sexual abuse of a child, seven counts of sexual abuse of a minor, four counts of abusive sexual contact, all involving two victims, and one count of child abuse. The alleged offenses occurred between 2002 and 2010.
The older alleged victim was born July 26, 1994. The sexual abuse is alleged to have started when the older victim was eleven and continued until she was age sixteen. The victim became pregnant at age 14 and gave birth to a child at age 15. The DNA evidence shows that the defendant is not the father of that child. There is no dispute that the victim's boyfriend is the father of the child. Defendant seeks the admission of evidence that the older victim had sexual relations with her boyfriend and that she gave birth to the boyfriend's child.
The younger victim was born on November 23, 1996. The sexual abuse is alleged to have started when the younger victim was age six and continued until she was age fourteen. Investigators seized a quilt from this alleged victim's bedroom which later tested positive for the presence of semen. Defendant seeks the admission of evidence that this alleged victim posted a note on an Internet Facebook page on December 21, 2010, stating "I mite b preg or not idk." In response to the question "by who" she responded "my × boi." Defendant contends that this victim had a boyfriend and the defense presumably asserts that this victim's boyfriend may be the source of the semen. This alleged victim testified that she was not pregnant.
The alleged victims were removed from their natural parents' home when their father was investigated for sexually abusing three older siblings of the alleged victims in the present case. The alleged victims in the present case were age 2 years and age 5 months when their natural father sexually abused their older siblings.
After the alleged victims were removed from their natural parents' home in 1997, they were placed in foster care in the home of defendant and his wife. Defendant and his wife adopted them in 2003. At the time of the adoption, defendant and his wife signed a subsidized adoption agreement with the South Dakota Department of Social Services ("SDDSS") for coverage under the South Dakota Medicaid program for the continued treatment of possible preexisting medical conditions suffered by the children. The older child's alleged preexisting medical problems to be covered were:
Anxiety disorder, borderline intellectual functioning, probable FAE [fetal alcohol syndrome], academic problems, post traumatic stress syndrome, sexual abuse of child, facial nerve weakness, expressive speech delay, individual and group counseling on an out-patient basis. Medical necessity, orthodontic treatment as warranted under the State of South Dakota Medicaid Program. Abused/Neglected child.
The younger child's alleged preexisting medical problems to be covered were:
sexual abuse, individual and group counseling on an out-patient basis, abused/neglected child, medical necessity, orthodontic treatment as warranted under the State of South Dakota Medicaid Program.
The SDDSS, who was then the legal guardian of the children, was responsible for setting forth the foregoing provisions in the agreement. Defendant seeks the admission of those agreements.
DECISION
The United States Court of Appeals for the Eighth Circuit has observed:
The Constitution guarantees every criminal defendant a fair trial. United States v. Ruiz, 536 U.S. 622, 628, 122 S.Ct. 2450, 153 L.Ed.2d 586 (2002). A constituent element of this guarantee is a defendant's right, grounded in the fifth and sixth amendments, to introduce evidence in his own defense. See United States v. Bear Stops, 997 F.2d 451, 454 (8th Cir. 1993). The right is not without limitation; it may sometimes have to "bow to accommodate other legitimate interests in the criminal trial process." United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (internal quotations omitted).United States. v. Bordeaux, 400 F.3d 548, 558 (8th Cir. 2005).
One such legitimate interest is "Fed.R.Crim.P. 412, the federal rape-shield rule, which "generally prohibits the admission of evidence concerning the alleged victim's past sexual behavior or alleged sexual predisposition, subject to certain enumerated exceptions." United States v. Pumpkin Seed, 572 F.3d 552, 557 (8th Cir. 2009). The exceptions allow the admission of such evidence, if such evidence is "otherwise admissible under these rules," to "prove that a person other than the accused was the source of semen, injury or other physical evidence," Rule 412(b)(1)(A), and where the exclusion of such evidence "would violate the constitutional rights of the defendant, Rule 412(b)(1)(C). "In the absence of an applicable exception, Rule 412 `specifically bars admission of evidence of the past sexual behavior of an alleged rape victim.'" United States v. White Buffalo, 84 F.3d 1052, 1054 (8th Cir. 1996) ( quoting United States v. Blue Horse, 856 F.2d 1037, 1040 (8th Cir. 1988)).
I. Source of Semen.
The government had indicated that it may seek to introduce evidence that semen was found on the quilt taken from the bed of the younger alleged victim. The government does not have DNA evidence linking that semen to the defendant. With further testing, we now know that there is no DNA of the defendant or the alleged victim in the semen. The defendant seeks to admit evidence that the younger alleged victim stated that she might be pregnant by an ex-boyfriend (and therefore the semen in her bed may be the result of intercourse between the alleged victim and her then-boyfriend) in order to rebut the semen evidence. The proffered evidence is all immaterial and will not be admitted, even if offered. If nothing else, it is barred by Rule 403.
II. Source of Injury.
Defendant did not offer any evidence at the hearing as to either alleged victim's physical injuries, if any. We know from Eighth Circuit case law that evidence "that [the victim]'s hymen was not intact; it had been stretched; her vaginal orifice was widened," fails to establish that the victim had been "injured" within the meaning of Rule 412(b)(2)(A). United States v. Shaw, 824 F.2d 601, 607-608 (8th Cir. 1987). I have held in the past that it is not necessary to admit evidence that the victim's hymen is not "intact." The Court has heard expert testimony in many sexual abuse cases that the absence of a hymen is not linked only to sexual relations. In any event, if the absence of a hymen is not admitted, there is no need for the defendant to offer an alternative explanation for that condition.
The Eighth Circuit held in Shaw that the court can deviate from Rule 412's general rule only when the evidence establishes an injury-such as a cut, bruise, or tear-that was sustained reasonably close in time to the alleged rape." United States v. Shaw, 824 F.2d at 608. There was no evidence presented at the Rule 412 hearing that any such injury exists.
The Eighth Circuit has also held that the "Rule 412's injury requirement exception does not apply to emotional injuries unaccompanied by cognizable physical consequence." United States v. Bear Stops, 997 F.2d 451, 455 n. 2 (8th Cir. 1993) ( quoting United States v. Shaw, 824 F.2d 601, 603 n. 2 (8th Cir. 1987)). Again, no evidence was presented as to any physical consequences of any alleged emotional injury.
The Eighth Circuit read into Rule 412(b)(2)(A)'s "injury" exception an intention on the part of Congress to limit the exception's scope to evidence of past sexual behavior that was "sustained reasonably close in time to the alleged rape." United States v. Shaw, 824 F.2d 601, 607-608 Id. Thus, any evidence that the alleged victims were sexually abused by their biological father many years before the sexual abuse which is alleged to have occurred in this case would be inadmissible under the injury exception, even if applicable.
There is no evidence to support the bald conclusions in the SDDSS documents about any alleged sexual abuse of the two children in question. Such documents will not be admissible unless some other foundation is submitted. Any such other foundation must be offered in camera.
III. When Constitutionally Required.
The defendant offered evidence that the alleged victims' suffered certain psychological conditions at the time they were adopted in 2003, presumably to rebut any claim that the defendant was the source of any psychological injury. The Eighth Circuit inBear Stops noted that the "exception permitting the admission of such evidence when `constitutionally required'" was applicable to claimed psychological injury. United States v. Bear Stops, 997 F.2d at 455 n. 2. Any evidence that either of the victims exhibits psychological behavior consistent with being sexually abused might trigger this Rule 412 exception. However, evidence that the alleged victim's biological father was the source of such psychological injuries must still withstand Rule 403, as explained below.
Defendant contends that admission of the alleged victims' sexual history is required to rebut any inference that he is the source of their knowledge of sexual matters. The Eighth Circuit has held that knowledge of sexual activity alone does not require the admission of such evidence. United States v. Johns, 15 F.3d 740, 744 (8th Cir. 1994) ("Johns sought to introduce evidence that C.D. had in the past consented to sex with persons other than himself. His defense at trial was that he never had sexual contact with C.D. and the only way she could have made such explicit accusations against him was if she had experienced such activity with other persons. We agree with the district court that Johns failed to satisfy the requirements for admitting sexual history evidence.") The Eighth Circuit stated, without elaboration, that there "is no basis for concluding that admission of sexual history testimony here is otherwise constitutionally required under Rule 412(b)(1)." Id.
Evidence of prior sexual abuse "provides scant insight" into whether a prior perpetrator is a source of the alleged victim's knowledge of vaginal or digital sex where there is no evidence of the alleged sexual acts engaged in by the other perpetrator.United States v. Bordeaux, 400 F.3d 548, 558 (8th Cir. 2005). The Eighth Circuit has also upheld exclusion of Rule 412 evidence where such evidence would not have supported an alternative source of knowledge concerning such things as male erections and semen. United States v. Kenyon, 397 F.3d 1071, 1079 (8th Cir. 2005) (the exclusion of evidence that the victim was kissed and fondled by a local boy did not violate defendant's Constitutional rights because the evidence would not have supported his theory that the victim had an alternative source of knowledge).
Unlike Kenyon, the alleged victims in this case are alleged to have engaged in sexual intercourse with their boyfriends. The defendant is charged with, inter alia, engaging in or attempting to engage in sexual activities with the alleged victims. I have read reports from interviews of the alleged victims which set out the sexual acts the defendant is alleged to have engaged in with the alleged victims. Neither the indictment nor those reports set forth in any detail specific sexual knowledge that the alleged victims possess. Judge Schreier, in an unpublished opinion, has held that evidence of a victim's past sexual behavior is prohibited by Rule 412 where "nothing suggests, nor does the government intend to introduce evidence suggesting, that she had sexual knowledge beyond her years." United States v. Tail, 2005 WL 2114224 (D.S.D. 2005), aff'd 459 F.3d 854 (8th Cir. 2006). I am unable to determine that the admission of the alleged victims' sexual history is Constitutionally required in this case.
IV. Otherwise Admissible under Rule 403.
None of the Rule 412 exceptions warrant the admissibility of evidence that the alleged victims engaged in other sexual behavior unless the evidence is "otherwise admissible under these rules." Fed.R.Evid. 412(b)(1). Fed. Rule Evid. 403 provides:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Any proffered evidence must satisfy Rule 403 prior to its admission under a Rule 412 exception.
"Restrictions on a criminal defendant's right[] . . . to present evidence . . . `may not be arbitrary or disproportionate to the purposes they are designed to serve.'" United States. v. Bordeaux, 400 F.3d at 558 ( quoting, Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) ( quoting Rock v. Arkansas, 483 U.S. 44, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987))). "One of the purposes of this rule is `to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details.'" United States v. Elbert, 561 F.3d 771, 776 (8th Cir. 2009) ( quoting Wilson v. City of Des Moines, 442 F.3d 637, 642 (8th Cir. 2006) and the Fed.R.Evid. 412 Advisory Committee Notes). The district court must determine whether the interest in "[p]reventing the potential embarrassment or harassment of the alleged victims" outweighs the probative value, if any, of the proffered evidence that the victims were subject to sexual abuse by their natural father when they were between the ages of seven months and three years or the evidence that one of the victims has had a child and the other victim previously stated that she might be pregnant (and must have therefore engaged in a sexual act). Bordeaux, 400 F.3d at 558. Accord,United States v. Papakee, 573 F.3d 569, 573 (8th Cir. 2009). The interest in protecting the victims must outweigh the probative value of such evidence in order to exclude the evidence.
The evidence that the alleged victims may have been sexually abused by their biological father when they were infants and that he may be the source of any injuries to the victims or may be the source of their knowledge of sexual matters "is too weak to justify the admission of this highly prejudicial evidence."United States v. Pumpkin Seed, 572 F.3d at 558. The alleged sexual abuse, which occurred when the victims were infants is too remote in time to have resulted in any injury or sexual knowledge. Further, there is no evidence to support the contention that the alleged victims were in fact sexually abused by their biological father. He admitted to the sexual abuse of three of his older children but he was never charged with sexually abusing the alleged victims in this case. The claimed evidence is nothing but unsupported speculation by some unknown employee of the SDDSS.
Evidence that the alleged victims may have had consensual intercourse with adolescent males does not necessarily provide an alternate explanation for extensive injuries. See, Hubbeling v. United States, 288 F.3d 363, 367 (8th Cir. 2002). Here, no evidence was proffered to suggest the extent of any physical injuries and the Court cannot conduct any balancing test as to the source of physical injury.
Evidence that the alleged victims have knowledge of sexual matters which one would not expect absent sexual abuse has not been presented to the Court. I cannot conduct a Rule 403 analysis as to the evidence to rebut such an inference in the absence of knowing what the government's witnesses will testify to at trial.
The admission of victim sexual history evidence may be limited, in accordance with the Constitution, to only a sanitized version of the sexual activity "sufficient to effectuate the purpose for which the evidence was offered." Bear Stops, 997 F.2d at 455. The version allowed cannot be "so sanitized that it was insufficient to support the purpose for which it was offered." Id.
CONCLUSION
As stated, the proffered evidence that the alleged victims were sexually abused by their biological father when they were infants is rejected. The evidence is not admissible under either Rule 412(b)(1)(A) or (C) and in any event would be excluded under Rule 403.The evidence that the alleged victims suffered from certain psychological conditions or symptoms in 2003 would be admissible to rebut any evidence introduced by the government that the alleged victims suffer symptoms characteristic of sexual abuse victims. However, any reference to prior sexual abuse should be redacted from proffered exhibits. Defense witnesses should be cautioned not to testify as to any claimed sexual abuse by the alleged victims' biological father.
Evidence that the alleged victims may have engaged in sexual intercourse with someone other than the defendant and that such activity is the explanation for their physical injuries or sexual knowledge is rejected at this time, without prejudice to renew the proffer of evidence in camera during trial. There is no evidence on the current record that the alleged victims suffered physical injuries as a result of the defendant's alleged sexual abuse or that the alleged victims possess sexual knowledge beyond their years.
As stated, the semen on the bed cover will not be admitted and no witness is to make any reference to it.
ORDER
IT IS SO ORDERED, as set forth above.Dated this 5th day of August, 2011.