Cipel's Possible Civil Action against McGreevey for Sexual Harassment, and Rape Shield Laws

The language of New Jersey's rape shield law suggests that New Jersey's rape shield law applies only in criminal cases. (However, I have done no research to see if New Jersey courts have stretched the letter or extended the spirit of the New Jersey rape shield law.)

The federal rape shield law, however, can apply in civil actions as well in criminal actions. (More precisely stated: a watered down version of the federal rape shield law can apply in some federal civil actions. See Federal Rule of Evidence 412(b)(2).)

The existence of a rape shield law is immaterial to my Cipel-McGreevey hypo if another rule of evidence -- such as the sort of character evidence rule that is codified by Federal Rule of Evidence 404 -- bars evidence of Cipel's non-gay character. To conclude otherwise one would have to say that an applicable rape shield law could expand the range of evidence admissible about a person or party such as Cipel. (This possibility exists; but it should be carefully considered.)

N.B. The federal rape shield law does not, by its literal terms, apply only to evidence offered against an alleged victim of sexual wrongdoing. For example, in a criminal action the federal rape shield law bars (subject to exceptions) "[e]vidence offered to prove any alleged victim's sexual predisposition." Federal Rule of Evidence 412(a)(2). So the federal rape shield law perhaps sometimes bars some evidence about an alleged victim of sexual wrongdoing even if both the prosecution (in a criminal trial) and the alleged victim would like to have evidence about the victim's sexual predisposition be admitted. That a rape shield law can perhaps work this way is a bit ironic -- since it is usually assumed that rape shield laws are designed to shield [alleged] victims.

A professional colleague (who I presume wishes to remain anonymous) called my attention to Lucado v. Maryland, 40 Md. App. 25, 389 A.2d 398, 1978 Md. App. LEXIS 243 (July 13, 1978). Although this opinion deals with a rape shield law that (at the time) applied only in criminal actions, the court's reasoning is interesting -- if not altogether persuasive. The issue (in this criminal trial for a "first degree sexual offense" in the form of homosexual rape) was whether evidence of the alleged victim's non-homosexual inclinations was admissible. The Maryland rape shield law barred evidence about an alleged victim's "chastity." The Maryland court held that evidence about the absence of a homosexual disposition is not evidence relating to "chastity." The Maryland court, for example, said (footnotes omitted):

The words "chaste" and "chastity", and the concepts which they purport to describe, have had a more limited meaning and application in the legal or societal setting than the full range of definitions given by Webster would require. ... In the law, these terms have been traditionally used with particular reference to women; indeed, they have been associated with nearly every vestige of the different, and generally unequal, treatment of men and women by the law.

This sort of reasoning, even if valid today, does not easily extend to rape shield statutes that bar, not just evidence about a victim's "chastity," but also evidence about a victim's sexual "predisposition," sexual "disposition," or sexual "propensities."

N.B. It is unclear that the Maryland court had to reach the question of the effect of Maryland's rape shield law on the admissibility of evidence of the alleged rape victim's non-homosexual proclivities. In its statement of the facts the Maryland court said that defense counsel had offered evidence that suggested that the victim was a homosexual:

During cross-examination of [the victim], both defense counsel intimated, through their questioning, that [the victim] was a homosexual, that he initiated the sexual activity, and that he enjoyed what happened to him. [The victim] unequivocally denied such suggestions. That this would be the principal line of defense became clear when appellant testified on his own behalf. He admitted being on "the Block" with Linton on the evening in question, but claimed that [victim] initiated the conversation, voluntarily got into the car, and initiated the sexual contact -- first with Linton and then with appellant. All allegations of force, coercion, and brutality were denied, as were the explicit acts testified to by [the victim]. Appellant claimed that [the victim] had grabbed him -- "started messing around with me, and I pushed him away." The clear, unmistakable import of appellant's testimony was that [the victim] was homosexual and had initiated everything that occurred in the car. Linton, who also testified, gave essentially the same story; he also charged [the victim] with initiating all of the episodes of fellatio and attempted anal intercourse.

Common sense suggests that the prosecution should have been able to counter such initimations of the victim's homosexuality even if in the absence of such initimations such counterevidence would have been inadmissible (because of, e.g., Maryland's rape shield law). But the law does not always convert common sense into law. The difficulty with an opening-the-door justification of the admissibility of victim's non-homosexual proclivities in this case is that the doctrine of curative admissibility (the modern name for the doctrine of fighting-fire-with-fire or opening-the-door) -- curative admissibility applies, most courts say, only after a trial court has improperly admitted inadmissible evidence: the door opens to a party's normally-inadmissible counter-evidence only after an opponent has been erroneously allowed to introduce inadmissible evidence.

As a matter of policy, it is not clear that the curative admissibility doctrine should be so limited. I see no good reason why a trial court should not have the discretion to allow a party to introduce evidence to counter legally-forbidden inferences that admissible evidence sometimes generates; a limiting instruction by the judge is not always effective.

It is not clear from the Maryland court's statement of facts that the defendants' insinuations about the homosexual inclinations of the victim were generated by inadmissible evidence (or by improper argument or questioning by defense counsel).