Existence of Third Party Intimate Relationships Does Not Invoke Rape Shield Statute to Infer Guilt

State v. Lavalleur (2014)

The Supreme Court of Nebraska has reversed an attempted sexual assault conviction after the trial court improperly excluded evidence of the complainant’s intimate relationship with a third party under the rape shield statute.

The trial court convicted Lavalleur of attempted sexual assault after the complainant, a co-worker, testified that she stayed the night at Lavalleur’s home. Her testimony suggested that Lavalleur had drugged her and then engaged in sexual contact with her. The defendant admitted that he touched the co-worker, so the case turned on whether she had consented to the contact.

The defense attempted to damage the co-worker’s credibility by presenting evidence that she had an intimate relationship with a third party. She didn’t want to admit to choosing to have sex with the defendant, his attorney argued, because she knew the third party would not take that well.

The trial judge excluded evidence about the co-worker’s relationship with the third party, citing the rape shield statute. Nebraska’s rape shield statute, modeled after the Federal Rules of Evidence, bars evidence offered to prove the complainant engaged in other sexual behavior or evidence offered to prove the complainant’s sexual predisposition. Generally, sexual behavior refers to specific instances while sexual predisposition refers to character evidence. In addition to barring the evidence under the rape shield statute, the trial judge held that the third party relationship was irrelevant.

First, the appellate court held that the rape shield statute did not bar the defense’s evidence because the third party relationship was not evidence of sexual behavior or sexual predisposition. The court reasoned that the existence of an intimate relationship between a complainant and a third party is not evidence of specific instances of sexual conduct or even of the character of the complainant. While it does imply that the complainant had had specific instances of sexual conduct with a third party, such evidence cannot be excluded on merely because of that implication.

The appellate court also held that the third party relationship was relevant because it established a motive for the complainant to lie about whether she had consented to the sexual contact between herself and the defendant. The court found that exclusion of this evidence was prejudicial because the complainant’s credibility was critical to the prosecutor’s case. The court therefore reversed the conviction.

Washington state also has a rape shield statute. Washington courts are often called on to decide when it bars defense evidence in rape, child molestation, and other sexual assault cases.