The Volokh Conspiracy
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The Utah Supreme Court Rules That Sexual Assault Victims Cannot Be Forced to Testify at "Rape Shield" Hearings
The Court follows my argument that the purpose of a rape shield hearing is to ... well ... shield rape victims.
Today the Utah Supreme Court agreed with my argument that a defendant cannot compel a rape victim to testify at a "rape shield" hearing. Instead, the defendant must establish (if he can) the admissibility of prior sexual history evidence in other ways, such as a proffer of anticipated testimony and legal argument. The Court's ruling solidifies the protections offered to victims under Utah's Rule of Evidence 412. And because Utah's rule uses the same language found in the federal rules and many state provisions, it will serve as a valuable precedent in other cases.
I previously blogged about the case here. In a nutshell, in the federal system and all states, "rape shield" rules require pre-trial hearings on whether evidence relating to a rape victim's prior sexual history is admissible at trial. For example, Utah's Rule of Evidence 412 (which parallels Federal Rule of Evidence 412) requires a defendant who intends to introduce a victim's prior sexual history evidence to make a detailed proffer of the relevance and purpose of the proposed evidence. The trial judge then holds a hearing and determines the admissibility of the evidence. But what if the defendant wants to subpoena a victim to the hearing and question her about prior sexual history as part of that determination? Is forcing a rape victim to testify consistent with the rule?
In December, I argued the case to the Utah Supreme Court on behalf of a victim, T.T., explaining that the rule does not allow defendant to compel victims to testify at such a pre-trial hearing. Today, the Utah Supreme Court agreed with my position:
T.T. argues that once the district court ruled that Jolley [the defendant] had identified "enough specific evidence of prior sexual behavior between him and T.T. to obtain a hearing, no justification existed for forcing T.T. to take the stand and be questioned about her prior sexual history." As she explains, the "only purpose of the rule 412 hearing at that point was to give T.T. an opportunity to be heard about the admissibility of the evidence—not to allow Defendant to force T.T. to take the stand so he could question her."
We agree with T.T. and conclude that both the district court and Jolley fundamentally mistake the purpose of a rule 412 hearing. As discussed, rule 412 requires a party intending to offer evidence that falls within the scope of rule 412's exceptions to "specifically describe[] the evidence" in a motion. Utah R. Evid. 412(c)(1)(A). In other words, it is the moving party's obligation to identify the evidence it seeks to admit in advance of the rule 412 hearing. See id. And, as our court of appeals has explained, that description should be specific enough to allow "the district court to, among other things, assess the probative value of the evidence and balance that value against the considerations rule 403 enumerates." See State v. Bravo, 2015 UT App 17, ¶ 27, 343 P.3d 306. It is not the district court's burden at the hearing to identify evidence for the moving party. Nor is it the victim's obligation to provide testimony at the hearing so that the moving party can meet its burden.
The Court also emphasized that a Rule 412 hearing is not designed for discovery. Instead, a "rule 412 hearing is designed for the presentation of argument on the admissibility of evidence already identified in motion by the moving party; it is not designed to uncover or test that evidence."
I worked closely on the case with the Utah Crime Victims' Legal Clinic, including its capable director Heidi Nestel, and the Clinic's skilled trial court attorney on the case, Crystal Powell. I understand that the Clinic is already citing today's decision to help prevent rape victims from being forced to testify in other cases. This is as it should be. As the Court observed today, "Rule 412 ensure[s] that sexual assault victims are not deterred from participating in prosecutions because of the fear of unwarranted inquiries into the victim's sexual behavior."
