Doe ex rel. Roe v. School Dist. No. 2

• Decision Date: 12 July 1999
• Docket Number: No. 24964.,24964.
• Citation: 518 S.E.2d 259,335 S.C. 556
• Court: South Carolina Supreme Court
• Parties: Jane DOE, by her Guardian ad Litem, Mary ROE, and Mary Roe, individually, Petitioners, v. ORANGEBURG COUNTY SCHOOL DISTRICT NO. 2, Respondent.

335 S.C. 556

518 S.E.2d 259

Jane DOE, by her Guardian ad Litem, Mary ROE, and Mary Roe, individually, Petitioners, v. ORANGEBURG COUNTY SCHOOL DISTRICT NO. 2, Respondent.

No. 24964.

Supreme Court of South Carolina.

Heard June 9, 1999.

Decided July 12, 1999.

Rehearing Denied August 17, 1999.

Preston F. McDaniel, of Columbia, and Clyde C. Dean, of Orangeburg, for petitioners.

William E. Craver, III, Bruce E. Davis, and Wendy L. Wilkie, all of Davis, Craver, Hagood, and Kerr, of Charleston, for respondent.

WALLER, Justice:

We granted a writ of certiorari to review the Court of Appeals' opinion in Doe v. Orangeburg County School District No. 2, 329 S.C. 221, 495 S.E.2d 230 (Ct.App.1997). We affirm as modified.

FACTS

This is a negligent supervision case. Doe, age 14, a student at Bowman High School in Orangeburg, was sexually assaulted in the girl's bathroom of the school gymnasium by an educably mentally handicapped 16 year old student. Thereafter, Doe and her mother sued the Orangeburg County School District (District) for negligent supervision alleging that the teacher who was supposed to be supervising the special education students, Coach Corder, had left the students unsupervised in the gymnasium, thereby allowing the assault to occur.

As a defense to her claim of negligent supervision, District asserted Doe had consented to the sexual encounter. Doe moved in limine to exclude any evidence of her consent to the assault, contending a minor under the age of sixteen is legally incapable of consenting to sexual battery. The trial court, relying on the Court of Appeals' opinion in Doe v. Greenville Hospital System, 323 S.C. 33, 448 S.E.2d 564 (Ct.App.1994), agreed that evidence of Doe's consent was improper.¹ The Court of Appeals reversed and remanded for a new trial, holding District should have been permitted to introduce evidence of Doe's consent for purposes of determining liability and damages.

ISSUE²

Did the Court of Appeals err in holding District should have been permitted to introduce evidence of Victim's alleged consent?

DISCUSSION

Pursuant to S.C.Code Ann. § 16-3-655(3):

A person is guilty of criminal sexual conduct in the second degree if the actor engages in sexual battery with a victim who is at least fourteen years of age but who is less than sixteen years of age and the actor is in a position of familial, custodial, or official authority to coerce the victim to submit or is older than the victim.

In Doe v. Greenville Hospital System, 323 S.C. 33, 37, 448 S.E.2d 564, 566 (Ct.App.1994),cert. dismissed as improvidently granted, 320 S.C. 235, 464 S.E.2d 124 (1995), the Court of Appeals held that in enacting section 16-3-655, "[a]s a matter of public policy, the General Assembly has determined a minor under the age of sixteen is not capable of voluntarily consenting to a sexual battery committed by an older person.... This is the law of this state, whether it is applied in a criminal or civil context."³(Emphasis supplied). In both Doe v. Greenville and the present case, the Court of Appeals held a jury charge that the victim was legally incapable of consenting to the sexual conduct was proper.⁴

Doe asserts that to instruct the jury she could not legally consent to the sexual battery, and simultaneously permit the jury to consider evidence of her consent is logically inconsistent. We disagree. Initially, we see no reason why an instruction limiting the jury's use of the victim's consent would not serve to eliminate any potential prejudice.⁵ See Berry v. Deloney, 28 F.3d 604 (7th Cir.1994) (trial court's repeated admonitions to jury that it could consider victim's consent only as to damages sufficient to eliminate the need for bifurcation). Second, if the trial court were to find the potential for prejudice too severe, it could order bifurcation of the issues of liability and damages pursuant to SCRCP, Rule 42(b). See Creighton v. Coligny Plaza Limited Partnership, 334 S.C. 96, 512 S.E.2d 510 (Ct.App.1998). In similar contexts courts have held a victim's willing participation is relevant to her civil claim for damages, notwithstanding statutory provisions negating the minor's ability to consent. See Parsons v. Parker, 160 Va. 810, 170 S.E. 1, 2-3 (1933) (statute rendered minor incapable in law of consenting to sexual act and defendant is liable in a civil suit for damages without regard to any question of consent; however, proof that the female consented is admissible on the quantum of damages); LK v. Reed, 631 So.2d 604 (La.App. 3rd Cir.1994) (holding that irrebuttable statutory presumption that minor could not consent to crime of carnal knowledge can not fully invalidate minor's consent to sexual intercourse in subsequent suit for damages; better analysis is to include principles of comparative fault);⁶Berry v. Deloney, supra (evidence concerning victim's prior and subsequent abortions not barred by Rape Shield Statute since jury could find it diminished amount of plaintiffs claimed damages for pain, suffering and emotional injuries allegedly caused by victim's sexual relationship with her school truant officer); Barton v. Bee Line, Inc., 238 A.D. 501, 265 N.Y.S. 284 (1933) (public policy would not be served by permitting victim to recover damages for her willing participation in that against which the law sought to protect her).

As noted by the Court of Appeals, the rationale for these holding was aptly stated in Barnes v. Barnes, 603 N.E.2d 1337, 1342 (Ind.1992):

Unlike the victim in a criminal case, the plaintiff in a civil damage action is "on trial" in the sense that he or she is an actual party seeking affirmative relief from another party. Such plaintiff is a voluntary participant, with strong financial incentive to shape the evidence that determines the outcome. It is antithetical to principles of fair trial that one party may seek recovery from another based on evidence it selects while precluding opposing relevant evidence on grounds of prejudice.⁷

Accord, LK v. Reed, supra (credibility of participants is an essential determination in a civil suit for sexual assault). While Barnes involved Indiana's Rape Shield Statute, we find the same underlying policy considerations apply here.

In accordance with these authorities, we hold evidence of a victim's willing participation or consent is admissible insofar as it pertains to a claim for damages. To prohibit such evidence would effectually allow a victim to come in and tell a one-sided version of events, without being subject to any real cross-examination or impeachment as to the damages actually suffered. Such a result is untenable. Accordingly, we hold the Court of Appeals' properly held District should have been permitted to introduce evidence of Doe's willing participation relevant to her damages.⁸

However, given our statutory and constitutional provisions, we agree with Doe that the fact that she may have consented to the intercourse is simply irrelevant for purposes of determining liability. Cases addressing similar issues hold that a victim's willing participation is only admissible on the issue of damages. See Parsons v. Parker, supra; LK v. Reed, supra. In holding otherwise, the Court of Appeals essentially held consent could be a complete defense to Doe's claim of negligent supervision. Given that § 16-3-655(3) applies to negate a victim's consent in both the criminal and civil context, Doe v. Greenville, supra, we hold consent is not a defense in either context. Accordingly, to the extent the Court of Appeals held evidence of Doe's consent was admissible on the issue of District's liability, its opinion is modified, and the matter remanded for a new trial.

CONCLUSION

We affirm the Court of Appeals' holding that evidence of a Victim's willing participation in a sexual encounter is relevant in her subsequent civil suit for damages.⁹ However, such evidence is limited to a victim's claim of damages, and is not admissible on the issue of liability. Accordingly, the Court of Appeals' opinion is modified to this extent it held evidence of Doe's consent was also admissible on the issue of liability.

AFFIRMED AS MODIFIED.

FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.

1. District sought to introduce evidence that Doe and the alleged assailant had had a prior relationship, that she went to the gym asking...