A 38 year-old defendant is charged with four counts of sexual conduct with a minor, and it is undisputed that he engaged in four acts of oral sexual intercourse with the victim, who was 15 years-old. The defendant, however, seeks to present evidence that the victim had engaged in oral sex with two other individuals, claiming that it went to his belief that the victim was eighteen or older. Should the court deem this evidence admissible? According to a trial court the answer is “yes,” and it may reach the same conclusion after a remand from the Court of Appeals of Arizona.

In State ex rel. Montgomery v. Duncan, 2011 WL 6778782 (Ariz.App. Div. 1 2011), the facts were as stated above, with the trial court deeming evidence of the the victim’s other sexual acts admissible despite Arizona’s rape shield law, which states that

A. Evidence relating to a victim’s reputation for chastity and opinion evidence relating to a victim’s chastity are not admissible in any prosecution for any offense in this chapter. Evidence of specific instances of the victim’s prior sexual conduct may be admitted only if a judge finds the evidence is relevant and is material to a fact in issue in the case and that the inflammatory or prejudicial nature of the evidence does not outweigh the probative value of the evidence, and if the evidence is one of the following: 1. Evidence of the victim’s past sexual conduct with the defendant. 2. Evidence of specific instances of sexual activity showing the source or origin of semen, pregnancy, disease or trauma. 3. Evidence that supports a claim that the victim has a motive in accusing the defendant of the crime. 4. Evidence offered for the purpose of impeachment when the prosecutor puts the victim’s prior sexual conduct in issue. 5. Evidence of false allegations of sexual misconduct made by the victim against others.

Here was the rationale given by the trial court for admitting the evidence:

[This is] why I’m allowing its admission. I view this evidence differently than what the rape shield law was designed to protect against. The rape shield law was not designed to protect against a defendant from being able to raise a theory of defense that goes to an element of the offense, which this does. It also goes to confrontation. So there’s actually two reasons that this is both relevant and I think would be reversible error to preclude. I do think a limiting instruction is appropriate. But, again, the Court finds it to be relevant to the theory of defense, specifically to refute the state of mind element of the offense, and with respect to confronting and cross-examining the victim when the victim testifies.

After this ruling, the State brought a special action in the Court of Appeals of Arizona, claiming that this ruling was erroneous. The appellate court initially found that the evidence was inadmissible under the rape shield law itself because, inter alia, the evidence did not satisfy any of the five enumerated exceptions. The court then noted that the trial court still could have admitted the evidence if it found that its exclusion would have violated the defendant’s Constitutional rights, such as his right to due process, his right to present a defense, and his right to confrontation.

And, according to the court, evidence can be admissible “notwithstanding the statutory bar if that evidence ‘has substantial probative value and when alternative evidence tending to prove the issue is not reasonably available.'” That said, the court found that “the trial court did not engage in any balancing to determine whether there was a due process or other constitutional violation that would occur if the statute was given effect and the testimony was precluded.”

Thus, the court remanded to the trial court to decide the issue anew, and, in, doing so, it gave the following admonition:

It is not apparent to us how cross-examining the Victim on this evidence will aid in the truth-seeking process as to what Defendant’s belief was as to the Victim’s age. Thus, the only affirmative inquiry that needs to be made is whether Defendant, in his testimony, should be permitted to testify on direct about how the Victim’s alleged statements that the Victim had previously engaged in oral sex led Defendant to conclude that the Victim was at least eighteen.

My conclusion: This admonition wasn’t nearly strong enough. The appellate court of course was correct to warn that defense counsel shouldn’t be able to cross-examine the 15 year-old victim about her alleged past acts of oral sex. But shouldn’t the court also have warned that this evidence should be deemed inadmissible, period? There are statistics all over the internet regarding the percentage of teenagers engaging in oral sex. I guess the most applicable one to this case would be the CDC study that found that 30% of females aged 15-17 reported giving oral sex to a male (and 38% reported receiving oral sex from a male).

Given these and other numbers and the general awareness that most people have that a decent percentage of teenagers are engaging in oral sex, what was the relevance of the defendant’s proffered evidence? How would it any way tend to establish that the defendant thought the victim was at least 18 years-old? The answer is that it wouldn’t. Instead, the evidence was lacking in any probative value and certainly lacking the substantial probative value required to make it admissible. But will the trial court see it that way?

-Colin Miller