The Pennsylvania Superior Court has decided the case of Commonwealth v. Palmore, holding that the trial court violated the defendant’s Confrontation Clause rights when it prohibited the defendant from testifying that he believed the complainant fabricated sexual assault allegations against him in order to discredit him and his attempts to tell the complainant’s boyfriend that he saw her performing oral sex on his roommate. This is one of only a handful of favorable appellate court rulings for the defense on whether a defendant may introduce any evidence relating to a rape complainant’s sexual history without violating Pennsylvania’s “Rape Shield Law.”
The Facts of Palmore
In Palmore, the defendant was a student at a college in Pennsylvania. One night, he hosted a party in his on-campus dorm room. He met the complainant during that party. The complainant claimed that two weeks later, the defendant forced himself on her, kissed her, placed one hand under her shirt and touched her breast. She claimed he then put his hand down her pants and touched her vagina. She testified that she protested throughout the sexual assault.
The Commonwealth arrested the defendant and charged him with indecent assault, disorderly conduct, and harassment. Prior to trial, the defendant moved to pierce the “rape shield” and admit evidence relating to the complainant’s past sexual conduct. Specifically, the defendant alleged that he had witnessed the complainant performing oral sex on his roommate. He argued that he confronted her about cheating on her boyfriend and that he later told her boyfriend about the cheating. He said that he both told the boyfriend verbally and then later discussed it with the boyfriend again via Facebook Messenger. He alleged that she fabricated the allegations of indecent assault against him so that her boyfriend would not believe him regarding the cheating incident with the defendant’s roommate. The trial court denied the motion to pierce the rape shield, finding that the evidence was not relevant and that the defendant could not introduce the evidence due to Pennsylvania’s Rape Shield Law.
The jury found the defendant guilty of all three charges. The trial court conducted a hearing to determine whether the defendant should have to register for life as a Sexually Violent Predator and concluded that he should, thereby requiring lifetime Megan’s Law registration. The trial court also sentenced the defendant to 228 to 729 days’ incarceration. The defendant appealed, arguing that the trial court erred in denying his motion to pierce the rape shield.
What is the Rape Shield Law?
Pennsylvania, like most states, has a Rape Shield Law. In general, a Rape Shield Law prevents a defendant from introducing evidence of a sexual assault complainant’s sexual history in order to discredit that witness. The purpose of the law is to prevent a defendant from introducing a complainant’s sexual history in order to smear the complainant and show that the complainant is promiscuous. The Pennsylvania statue reads:
Evidence of specific instances of the alleged victim’s past sexual conduct, opinion evidence of the alleged victim’s past sexual conduct, and reputation evidence of the alleged victim’s past sexual conduct shall not be admissible in prosecutions . . . except evidence of the alleged victim’s past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
The actual language of the statue appears to prohibit all evidence relating to a complainant’s sexual history that does not relate to a sexual history with the actual defendant charged with the crime. Courts have concluded, however, that the statute must be read in such a way that it will not violate a defendant’s rights under the Pennsylvania and United States Confrontation Clauses. Therefore, there are other exceptions to the Rape Shield Act beyond the exception explicitly mentioned in the statute.
What is the Confrontation Clause?
Both the Pennsylvania and United States Constitutions contain a Confrontation Clause. The Confrontation Clauses provide that in a criminal prosecution, the defendant must have the right to confront the witnesses against him or her. Confrontation has been interpreted by appellate courts as meaning cross-examination. Thus, courts, have held that rules that limit a defendant’s right to introduce relevant evidence through cross-examination of a complainant may violate the Confrontation Clause.
In order to harmonize the Rape Shield Act with the defendant’s right to confrontation, courts have found that a defendant may pierce the rape shield in certain cases when the evidence which the defendant seeks to introduce would show not that the complainant is promiscuous or sexually active but instead that the complainant has some motive to fabricate the allegations of sexual assault. Thus, the Rape Shield Law may not be used to exclude relevant evidence showing a witness’s bias or attacking a witness’s credibility.
In order to pierce the rape shield, the defendant must file a written motion in advance which contains the allegations that the defendant believes support introducing this type of evidence. If the defendant fails to file the motion in advance, the evidence may be excluded. After the defendant provides notice in the form of a written motion, the trial court must determine if the proffered reason for introduction of past sexual conduct evidence is merely speculation or conjecture. If it is, then the motion should be denied. If it is not, then the trial court must hold an in camera (non-public) hearing to evaluate the evidence.
In evaluating the evidence, the trial court must consider three factors:
- Whether the evidence sought to be admitted is relevant to the accused’s defense,
- Whether the evidence sought to be admitted is merely cumulative of evidence otherwise admissible at trial, and
- Whether the evidence which the accused wishes to introduce at trial is more probative than prejudicial.
If the answer to each question is yes, then the trial court must permit the defendant to introduce the proffered evidence. Otherwise, the court would violate the defendant’s right to confront his accuser.
The Superior Court’s Ruling in Palmore
The Superior Court ruled that the evidence should have been admitted. The trial court held the hearing, so the court must have concluded that the evidence was not mere conjecture or speculation. The Superior Court also concluded that the evidence was relevant because it went directly to the complainant’s credibility. It gave her a reason to fabricate the allegations against the defendant. It was not cumulative because there was no other way for the defendant to establish that the complainant had fabricated the allegations or had a reason to fabricate the allegations.
However, the trial court had found that the evidence was more prejudicial than probative. The Superior Court rejected this analysis; it found that the defendant was not seeking to impugn the complainant’s character or label her as a promiscuous college student. Instead, he sought to introduce the evidence to get to the truth by challenging her credibility. Thus, the evidence would not have violated the Rape Shield Law by shifting the focus of the trial from whether the defendant committed the crime charged to a trial on the “virtue and chastity of the victim.” The evidence offered was key to the defendant’s defense, and he had no other real opportunity to challenge the complainant’s credibility. Therefore, it should have been admitted, and the trial court violated his Confrontation Clause rights by precluding it. The defendant will receive a new trial at which the evidence will be admissible.
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