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Why Judges Never Get it Right on Rape Shield Issues

Little highlights the spinelessness and timidity of appellate courts more than “rape shield law” and other sex offense rulings. That’s at best. At worst, conservative hanging judges wet their pants at the prospect of bowing to a liberal shibboleth while eviscerating the due process rights of the accused that come before them.

Let’s start with the punchline: the New York Appellate Division, Third Department, in January this year found that it was just fine to deny a rape defendant access to clinical mental health records of the accuser documenting “a very poor perception of reality with distortions in her interpersonal relationships.” The excluded records further “relate(d) to the victim’s ability to recall events”, “associate(d) her seizure activity with possible memory loss”, document(ed) “episodes where she ended up in places and could not remember going there”, and “found that the victim’s memory is selective, namely that she admits not being able to remember good experiences with a person if she had bad experiences with that person”, that “the victim has suffered flashbacks from previous sexual abuse”, and “records of prior allegations of sexual abuse that were possibly false”. There was a dissent, by Judge McCarthy, though that’s likely little consolation to the defendant in the case.

Sex crimes, like issues of Israel and Palestine, tend to cut across default liberal positions. Because of this, judges tend in sex crimes to err on the side of denying the defense attorney access to records he seeks for his client or precluding evidence of the sexual conduct of an accuser even when the conduct is central to a relevant fact in the case. I remember a rape trial I did where my client was accused of having drugged the accuser by dropping a drug into her drink. The judge precluded me from introducing evidence that the accuser had been making out with another woman moments before speaking to my client in the club, for the purpose of suggesting that the other woman had drugged her drink. The case was a weak one anyway, and we prevailed, but the knee jerk reaction against introducing anything that touches on the sexual behavior or an accuser can lead to very real false convictions.

In the end of the day, the criminal defense attorney’s job is to make sure that the judge’s deference to the sensitivities of the times doesn’t impair the more timeless sanctity of due process. Anything less results in real life consequences, such as false convictions. I’d say, respectfully, that the Third Department got it wrong on this one.

Andrew Stoll is a New York City Criminal Defense, Civil Rights, and Employee Lawyer. He is the founding partner of Stoll, Glickman & Bellina, LLP, a Brooklyn based law firm dedicated to empowering the exploited. Stoll is an adjunct law professor at Seton Hall Law School, sits on the Corrections Committee of the New York City Bar Association, and is a member of the National Police Accountability Project.