State v. Colburn (2016)
by David S. Marshall
An appellate court has reversed convictions for incest, sexual intercourse without consent, and sexual assault. It ruled that the trial court abused its discretion by mechanistically applying Montana’s rape shield law without balancing defendant Colburn’s right to present a defense.
The law prohibits a criminal defendant from presenting evidence of an alleged victim’s past sexual conduct, unless it shows sexual conduct with the defendant, or unless it consists of specific instances to show the origin of semen, pregnancy, or disease at issue in the case.
Many states have enacted rape shield laws to ensure the exclusion of irrelevant evidence of a victim’s prior sexual history. Washington’s rape shield law is found at Revised Code of Washington Section 9A.44.020. It says that sexual behavior of an alleged victim is not admissible to challenge the alleged victim’s credibility, but it is admissible to prove consent to the sexual conduct at issue.
However, an alleged victim’s rights under such rape shield laws are not absolute. The court must always consider that exclusions of evidence under such laws may violate a defendant’s right to present a defense.
Under the Sixth Amendment to the U.S. Constitution, a criminal defendant has the right to confront witnesses and to present evidence in his or her defense. In the Colburn case, the trial court excluded the defendant’s proffered evidence that the victim’s father had sexually abused her without considering the defendant’s Sixth Amendment rights.
Colburn wanted to argue that the alleged victim, R.W., testified to certain sexual conduct not because Colburn had abused her, but because her father had abused her. Her father’s conduct, he contended, was the source of her precocious sexual knowledge. Colburn could have supported this claim with evidence that the girl’s father was convicted of sexual assault against her.
Because of the rape shield law, the trial court said, Colburn could not make this argument; he could not present evidence about R.W.’s sexual activity. The trial court thus abused its discretion, the appellate court found, in excluding such evidence without considering Colburn’s right to mount a defense.
The appellate court remanded the case for the trial court to balance the defendant’s constitutional rights with R.W.’s rights under the rape shield law.
Washington courts have long recognized the high probative value of evidence that an alleged victim was previously abused. In the Olympia, Washington case ofState v. Carver, the Washington Court of Appeals reversed and remanded a conviction for statutory rape because the trial court improperly excluded evidence of the alleged victim’s prior sexual abuse.
In a case from Pierce County, Washington, State v. Kilgore, the court of appeals similarly held that trial courts cannot use Washington’s rape shield law to exclude evidence that someone other than the defendant had previously abused the alleged victim.
As in Colburn’s case, the appellate court in Kilgore’s case held that the prior abuse could provide an alternate explanation of the child’s precocious sexual knowledge. It was thus relevant and should be weighed against the child’s rights under the rape shield law.