What’s On Their Minds: Does Ohio’s Rape Shield Statute Bar Evidence Of Prior Sexual Abuse Suffered By The Victim? State of Ohio v. Cedric N. Jeffries.

On March 27, 2019, the Supreme Court of Ohio heard oral argument in State of Ohio v. Cedric N. Jeffries, 2018-0338. At issue in the case is whether Ohio’s rape-shield statute prohibits evidence of prior sexual abuse suffered by the victim.

Case Background

D.S., a minor, lived in foster care until the age of six. When D.S. was six, she moved in with her grandmother. Cedric Jeffries was her grandmother’s adult son, and he lived in the house as well. D.S. viewed Jeffries as a father figure, and called him “Dad.”

D.S. testified that Jeffries began touching her inappropriately starting at age six, and that this inappropriate conduct continued for years, but she never told anyone for fear of not being believed and being sent back to foster care. D.S. finally ran away from home, and told her school principal about the abuse. Jeffries was arrested, and charged in a four-count indictment with two counts of rape and two counts of kidnapping.

Prior to trial, pursuant to State v. Boggs, the trial court held an in-camera hearing to determine whether to admit evidence of D.S. having been sexually abused by a foster brother when she was approximately four or five years old, which D.S. had promptly reported to a social worker at the time. The trial court determined the incident did involve sexual activity, was not false, and was protected by the rape shield statute. Therefore, defense counsel was not permitted to question D.S. about the prior sexual abuse or otherwise seek to admit evidence of the abuse.

The jury convicted Jeffries on all counts. Jeffries was sentenced to life in prison with parole eligibility after 15 years. Jeffries appealed.

The Appeal

In a unanimous opinion the Eighth District Court of Appeals affirmed the trial court’s exclusion of prior sexual abuse evidence under the rape-shield statute. Relying on State v. Boggs, the Court of Appeals held that evidence of both the victim’s prior nonconsensual and consensual sexual activity should be excluded under the statute, if not false, and that the trial court did not abuse its discretion in disallowing any questioning on the prior sex abuse incident.

Read the oral argument preview here.

Key Precedent

R.C. 2907.02(D) (Ohio’s Rape Shield Law)(“Evidence of specific instances of the victim’s sexual activity . . . shall not be admitted . . . .”)

R.C. 2907.01 Sex Offenses General Definitions

(A) Defines Sexual Conduct

(B) Defines Sexual Contact

State v. Gardner, 59 Ohio St.2d 14 (1979) (The goals of Ohio’s rape shield law are guarding the victim’s sexual privacy, encouraging the reporting of rapes, and excluding evidence that is unduly inflammatory and prejudicial.)

State v. Boggs, 63 Ohio St.3d 418 (1992) (“[T]he trial court must ascertain whether any sexual activity took place, i.e., an actual rape or consensual sex. If it is established that either type of activity took place, the rape shield statute prohibits any further inquiry into this area . . . .”)

State v. Stoffer, 2011-Ohio-5133 (7th Dist.) (The rape shield statute addresses only prior consensual sexual activity of the victim and not prior sexual abuse suffered by the victim.)

State v. Williams, 2012-Ohio-5695 (When considering prior bad acts evidence, trial courts should consider the relevance of such evidence, whether the evidence is presented to prove the defendant’s character, and whether the evidence’s probative value is substantially outweighed by prejudice to the defendant.)

Jeffries’ Proposition of Law Accepted for Review

Ohio’s rape shield law prohibition on the admission of “specific instances of the victim’s sexual activity” applies only to consensual sex or whether it also prohibits questions related to prior sexual abuse.*

*In his brief Jeffries apologized for this inartfully worded proposition of law, and restated it as follows:

R.C. 2907.02(D)’s prohibition on the admission of “specific instances of the victim’s sexual activity” applies only to consensual sex and does not prohibit evidence of prior sexual abuse perpetrated upon a victim.

At Oral Argument

Justice Kennedy was absent from the argument, but the Chief announced that Kennedy would watch the argument and participate in the decision.

Arguing Counsel

John T. Martin, Assistant Public Defender, Cuyahoga County, for Appellant Cedric Jeffries

Mary M. Frey, Assistant Prosecuting Attorney, Cuyahoga County, for Appellee State of Ohio

Jeffries’ Argument

Ohio’s rape shield statute does not apply to non-consensual sexual activity. This is demonstrated by the plain language and purpose of the statute, what the Court has done, rather than said, in the past with this issue, and because of Constitutional considerations.

The defense position is bolstered by the use of the term “victim’s” sexual activity in the statute. In ordinary parlance, we would never considered someone who has been raped to have engaged in “sexual activity.” “Sexual conduct” and “sexual contact” are both defined without any mention of consensual or nonconsensual activity. In order to accept Jeffries’ proposition of law, in terms of existing precedent, the Court need only clarify that Boggs only concerned the issue of whether there needs to be a pre-testimonial hearing on whether or not an allegation is true or false. Boggs should be qualified by virtue of the facts and circumstances that had come up in that particular situation.

The primary purpose of the rape shield law is to keep the jury focused on what took place without passing judgment on the sexual mores of the alleged victim. No one is passing judgment on the sexual mores or the moral character of a 4 or 5 -year-old who was the victim of a rape.

The defense is not suggesting that every time there is a prior rape of an alleged victim that must come in to evidence. All the defense is saying is instead of using the bright line rule in the rape shield law that ties a judge’s hands, allow the other rules of evidence, like 401, 403, 404, and 611 to do their job. There are available remedies under the rules of evidence.

This case is about the purpose of the rape shield act. It’s not about giving either side an advantage. It’s about getting to the truth. It’s one thing to say we have a rape shield act that puts blinders on the jury to the extent that the jury shouldn’t be prejudiced by issues of sexual mores. But when the blinders turn into a blindfold, because of the judge having his or her hands tied, and not allowing the jury to see what they should, then things are turned on their head and there is an injustice. And we’re not getting to the truth.

The Williams case, which dealt with the defendant’s prior sexual activity, is illustrative. There, this Court examined the defendant’s prior nonconsensual sexual conduct, not under R.C. 2907.02, but solely under Evidence Rules 401, 403, and 404.

Finally, the rape shield statute is unconstitutional as applied here. The General Assembly is presumed to intend to write a constitutional statute. However, if there reaches a point where a defendant’s rights of cross examination and confrontation have been foreclosed by a bright line rule with regard to nonconsensual sexual activity, then that line has been crossed. In such cases, the legislature must be presumed not to have intended for the statute to be applied in such a way.

Jeffries’ interpretation of the rape shield law is consistent with the purpose of getting to the truth. It will cut both ways—some days it will help the defense, others the prosecution. But it will help the jury get to the truth, which is what we all want.

State’s Argument

There is only one issue before the Court, and it is not a constitutional issue. Jeffries’ proposition of law raising a constitutional question was not accepted for review. The issue before the Court is whether the term “victim’s sexual activity” as used in the rape shield laws applies to consensual and nonconsensual sexual activity. Since the rape shield law is unambiguous, it needs no interpretation. The unequivocal answer is that the rape shield law covers both consensual and nonconsensual activity.

Prior sexual assault is encompassed in prior sexual activity based on the definition for sexual activity, which is sexual conduct or contact. There’s no limiting language in any of those definitions for consensual or nonconsensual activity. It’s important for this Court to consider how the phrases “sexual contact,” “sexual conduct,” and “sexual activity” are used throughout Chapter 290. When the legislature wants to qualify those terms, it does so, with either nonconsensual language or consensual language. Here, under the rape shield law, there’s no limiting language. When a statute is unambiguous, words are not added or deleted in interpreting the statute.

The state’s interpretation of the rape shield law as providing heightened protection for evidence of nonconsensual sexual activity is not just to protect the victim’s sexual privacy, but also to encourage the reporting of sexual assaults. And if the focus is on what the victim has done or what has been done to the victim in the past, then the victim is being put on trial instead of the defendant. If nonconsensual sexual activity is not covered under the rape shield law, reporting could be chilled, especially for child victims and their parents.

In this particular case, the evidence of prior nonconsensual sexual activity of the victim was not only precluded under the rape shield law, but the trial judge also excluded the evidence on relevancy grounds—an issue Jeffries did not address at the court of appeals. Furthermore, the question of why the victim did not report any of this present abuse sooner did come up in this trial. The state raised the issue in direct examination, and the victim said she didn’t think she would be believed and that she didn’t want to go back to foster care. During cross, the defense had the opportunity to discuss this issue with the victim and to show the jury that there was a delay in reporting, and that the victim had an opportunity to talk to trustworthy individuals, like a doctor or a teacher, and she didn’t. And then the state had an opportunity to explain why, when the victim testified on redirect that it was just hard to do. As a result, the defense wasn’t really disadvantaged by the fact that they didn’t get to ask about this specific reporting incident.

The state also disagrees with the defense about what it brought to the trial court’s attention when the state asked at trial why the victim had not reported the incident sooner. The defense never argued that the state had opened the door, that the defense did not know the victim was going to say she wasn’t believed, and that it should have been allowed to ask about this-an argument the defense did not make until it was raised in Jeffries’ jurisdictional memorandum.

This Court should hold that the “victim’s sexual activity” as used in Ohio’s rape shield laws encompasses both consensual and nonconsensual sexual activity and therefore the statute prohibits the introduction of evidence of any sexual activity of the victim, absent a statutory exception.

What Was On Their Minds

The Rape Shield Law and Its Purpose

For the rape shield statute to mean what the state says it means, would the statute have to say, “the victim’s sexual activity or any sexual activity or contact with the victim,” asked Justice Stewart? Could part of the underlying reason for the rape shield statute be to protect the victim in these sexual assault cases, not only with equating past activity to mean present consent, but from the embarrassment and the stigma of having even nonconsensual or unwanted sexual activity? Here the trial court found the testimony regarding the prior assault would not be relevant, she noted. But is it prohibited by the rape shield statute?

The defense wants to compare one situation to an unrelated situation years earlier, and tell the jury that because the victim didn’t act in one way that should raise doubt in their minds about her credibility, right, asked Justice Donnelly? Was that argued at the trial court level? In that supposed Boggs hearing before the trial court judge? Is the purpose of the rape shield law to not allow the defense to raise the specter of promiscuity of the victim, usually in consent-contested cases? What I am hearing from the defense is that in this particular trial they wanted this line of inquiry in order to compare the response time of the victim in one incident with an incident that took place years before, he noted. As I read the briefs, there was nothing in this trial that prevented the defense, through cross examination, without raising this specific incident, from raising the response time issue with this alleged victim, at trial, and asking, why didn’t you report it earlier?

Does the state agree with the defense position that a defendant’s past acts of sexual abuse could also not be raised, asked Justice French?

Definitions

Doesn’t the statutory definition of “sexual contact” seem to pretty clearly cover this, asked Justice DeWine? Doesn’t it speak of “any touching?”

Can we say that nonconsensual sexual activity can be categorized as the victim’s sexual activity, asked Justice Stewart?

Is prior sexual assault the same as prior sexual activity, asked Justice Fischer?

Boggs Decision

Doesn’t Boggs take care of the consensual versus nonconsensual issue, asked Justice Fischer? Must Boggs be overruled if the Court were to agree with the defense?

Evidence Rules Versus Rape Shield Law

Couldn’t the trial judge have made the decision about the disputed evidence just applying an E.R. 403 analysis, asked Justice Donnelly? Setting aside the rape shield issue and saying is the probative value of the evidence the defense wants to bring in outweighed by the prejudice to the state in this case?

What’s the state’s interest in not having what the defense wants to put forth as evidence, asked Justice Stewart? Aren’t there other protections with the evidence rules to guard against this that the trial court has at its disposal if it’s improper and inappropriate for the circumstance?

How It Looks From The Bleachers

To Professor Emerita Bettman

Like a win for the state. While Mr. Martin always argues passionately for his clients, I just didn’t find this one very convincing, especially his answer to Justice Fischer’s question about why this case wasn’t controlled by Boggs. Perhaps the best Jeffries can hope for is for the Court to discuss the interplay between the rape shield statute and the evidence rules, especially 403(B) and 404. Justices Stewart and Donnelly seemed especially interested in that interplay.

To Student Contributor Carson Miller

I think that the Court’s doubt about Mr. Martin’s statutory interpretation will likely carry the day for the State. Most troubling for the Court was Mr. Martin’s assertion that R.C. 2907.02 did not intend to include nonconsensual sexual activity within the phrase “victim’s sexual activity.” Justices DeWine, Fischer, Stewart, and Donnelly all had varying questions on the validity of that interpretation given the other definitions of “sexual activity” within the Ohio Revised Code.

Noticeably, Justice Kennedy was absent and Chief Justice O’Connor did not question the litigants. If there is a way that Jeffries wins, it might be because of the argument that the inclusion of nonconsensual sexual activity in the rape shield statute could chill reporting of sexual assaults. However, based on the immediate reaction from the bench, I see the State winning this one.