Convictions Reversed for Exclusion of Texts with Boyfriend

State v. Varlas (2016)

by David S. Marshall

A West Virginia court has reversed convictions for second degree sexual assault and attempted first degree sexual abuse when the trial court excluded evidence of a series of text messages between the complainant and her boyfriend.

Varlas was accused of engaging in non-consensual intercourse with N.S. when the two were hanging out in Varlas’s home. N.S. did not right away report the incident to the police. She and her boyfriend then exchanged a series of text messages. Defense counsel tried to admit 29 of the messages, all from the boyfriend.

In these 29 messages, the boyfriend insinuated that N.S. wanted to have sex with Varlas because N.S. did not go to the police. The boyfriend urged N.S. to call the cops and said repeatedly that he did not want her to spend time with or have sex with other boys. The last of the 29 messages accused N.S. of “whoring around” and stated, “If it was rape, you would have already called the cops.”

The trial court disallowed the series of texts due to West Virginia’s Rape Shield Law. The law prohibits admission of evidence showing that an alleged victim engaged in other sexual behavior, or evidence showing an alleged victim’s tendency to engage in sexual behavior, for the purpose of proving sexual misconduct.

Such evidence is permitted, however, in some circumstances. The law in this case is similar to that in Washington State, where evidence of past sexual intercourse is not admissible unless:

  • the defendant offers it to show consent
  • the complaining witness “opens the door” by offering the evidence himself or herself
  • the exclusion of the evidence would violate the defendant’s constitutional rights

In Varlas’s case, defense counsel wanted to admit the text messages to show why N.S. ultimately decided to call the police. Both the defense and the State agreed that the text messages were relevant for this purpose, but the judge determined that N.S.’s testimony about the pressure that her boyfriend put on her to call the police was sufficient evidence on that point.

At trial, Varlas admitted that he had sexual intercourse with N.S. but said that she had consented. The jury found Varlas guilty. On appeal, Varlas argued that the text messages should have been admitted.

The court of appeals agreed, finding that none of the text messages detailed N.S.’s past sexual history. The texts instead related to sexual conduct between Varlas and N.S., which the statute permits because it is not “other” sexual behavior. Thus, the trial court erred in excluding the texts.

This error required reversal of the convictions and a new trial because it put the fairness of the trial in doubt. Varlas was entitled to have a jury know the extent to which N.S.’s boyfriend pressured her to call the police. N.S.’s testimony was insufficient for the jury to know that.