Friday, August 20, 2004

Can He Try to Prove He Is Not Gay?

Flash! Governor James McGreevey of New Jersey is quitting his job (but not immediately).

At a brief news conference McGreevey explained -- or asserted -- that he had had a consensual sexual relationship or transaction with another man. McGreevey added that he (McGreevey) is a "gay American." But McGreevey also said he was not resigning because he is gay. McGreevey said that he was quitting his job because his extramarital affair violated his marital vows -- Gov. McGreevey is married to a woman -- and because his extramarital affair had put him (the governor) and the State of New Jersey in some sort of jeopardy.

The object of McGreevey's interest tells a rather different story. This man, Golan Cipel, claims that any sexual relationship that he may have had with McGreevey was not consensual; Cipel asserts that he was coerced by McGreevey. Cipel has made another interesting claim: Cipel told news reporters that that he is not gay.

Question: If Cipel brings a civil action for sexual harassment against McGreevey can Cipel submit evidence to show that he, Cipel, is not gay? Or would such evidence about the sexual inclinations and dispositions of the putative victim of McGreevey's alleged sexual harassment violate the character evidence rule, a rule that, in general terms, prohibits the use of a person's disposition to show the doing or non-doing of an act by that person?

  • Suppose the action is brought in a federal trial court.
  • Alternatively, suppose the action is brought in a trial court of the State of New Jersey.
  • N.B. We are agreed, are we not, that McGreevey's expected defense that Cipel consented to a sexual relationship of some kind with McGreevey does not obviate the application of the character evidence prohibition on the theory that the issue of Cipel's consent puts Cipel's character "in issue"? Character or disposition is not an element of the defense of consent. In particular, a person who does not have homosexual inclinations or dispositions can nevertheless consent to a homosexual transaction. Correct?

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