Sex Convictions Reversed Because Adult Pornography Admitted in Evidence

Commonwealth v. Christie (2016)

by David S. Marshall

The Appeals Court of Massachusetts has reversed convictions for indecent assault and battery on child and statutory rape due to improperly admitted evidence.

The court decided the trial judge erred in admitting evidence that defendant Christie possessed videotapes of adult men engaged in homosexual acts in order to show his sexual interest in the alleged victim, a 12-year-old boy.

Christie was accused of performing oral sex on the boy, showing the boy pornographic DVDs, and using a sex toy on him. The boy said that one of the DVDs showed two men having sex.

Upon executing a search warrant of Christie’s home, the police seized eight VHS tapes of same-sex adult male pornography.

Christie was charged with several counts of statutory rape, one count of Indecent Assault and Battery on a Child Under the Age of Fourteen, and Dissemination to a Minor of Matter Harmful to Minors.

The trial judge concluded that the same-sex pornography was relevant to show Christie’s sexual interest in the male child. However, the judge noted that evidence of a man’s homosexuality is irrelevant to whether he has a sexual interest in children.

The court therefore provided an instruction to the jury to limit its use of the pornographic evidence to whether Christie had a sexual interest in children. Christie’s homosexuality alone could not be considered evidence of that sexual interest.

The jury instruction provided that the videotape evidence was relevant to Christie’s state of mind and sexual interest only for the purposes of the rape and assault convictions. The jury was not to use the evidence to show Christie’s tendency to commit this type of crime, also known as “propensity evidence.”

In Washington State, where my firm is based, evidence of a criminal defendant’s sexual interest is admissible only if it shows an interest in the complainant in the case on trial. For example, in a child molestation trial in Washington, evidence the defendant has molested other children is not admissible. In 1982 the Washington Supreme Court articulated this rule well in an adult rape case, State of Washington v. Saltarelli.

Some other states admit a broader range of propensity evidence than Washington does, but in most states such evidence is not admissible unless its probative value is greater than its risk of unfair prejudice to the defendant.

In Christie’s trial, the jury convicted him of all charges.

On appeal, Christie argued that the evidence of the videotapes was inadmissible propensity evidence.

The appellate court agreed, comparing the case to a hypothetical situation: heterosexual pornography would be absolutely irrelevant in showing sexual interest in a female child. Thus, the same-sex adult male pornographic tapes do not establish sexual interest toward boys. The trial court erred in allowing the evidence in, and the instruction it provided to the jury was insufficient to correct the error.

Because evidence of homosexuality tended to unfairly prejudice Christie, the appellate court reversed the convictions for statutory rape and for assault and battery on a child.