Sandoval v. Acevedo

• Decision Date: 20 May 1993
• Docket Number: No. 92-2089,92-2089
• Citation: 996 F.2d 145
• Parties: Santiago SANDOVAL, Petitioner-Appellant, v. Gerado ACEVEDO, Warden of East Moline Correctional Center, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 145

996 F.2d 145

Santiago SANDOVAL, Petitioner-Appellant, v. Gerado ACEVEDO, Warden of East Moline Correctional Center,

Respondent-Appellee.

No. 92-2089.

United States Court of Appeals, Seventh Circuit.

Argued Jan. 26, 1993.

Decided May 20, 1993.

Robert P. Will, Jr. (argued), Will & Briscoe, Waukegan, IL, for petitioner-appellant.

Thomas L. Ciecko, Deputy Atty. Gen., Martha E. Gillis (argued), Office of the Attorney General, Chicago, IL, for respondent-appellee.

Before POSNER and RIPPLE, Circuit Judges, and FAIRCHILD, Senior Circuit Judge.

POSNER, Circuit Judge.

Santiago Sandoval was convicted by a jury in an Illinois state court of criminal sexual assault and was sentenced to 15 years in prison, the maximum punishment. After exhausting his state remedies he sought habeas corpus in a federal district court, lost, and appeals.

The only direct evidence of Sandoval's guilt was the testimony of his victim (whom we shall call "S____" to protect her privacy), which we summarize: She was a divorced woman of 20 when she first met him, he a 27-year-old man who had been born in Panama, was divorced, and was working as a power lineman for Commonwealth Edison at a salary of $600 a week. After living together for several months they broke up because he would become violent and hit her when she refused his demands for sexual intercourse. They reconciled to the extent of resuming dating and were having a fine time at a night spot on New Year's Eve when Sandoval became jealous upon being told by the disc jockey that S____ had been seen with another man. Sandoval calmed down and S____ agreed to accompany him to his apartment to discuss their relationship. He again became angry, accused her of having slept with the other man, and finally announced "that he was going to fuck [her] one last time." She resisted, but he dragged her on her back to the bedroom and then ordered her to roll over. Realizing that he meant to force her to submit to anal intercourse, she begged him not to have intercourse with her that way because they had had anal sex twice before and it had hurt her very badly. After forcibly sodomizing her, he compelled her to perform fellatio on him.

She fled, partially clothed, pounded on the first apartment door that she came to, and told the occupant in a manner that he described as "between anxious and hysterical" that she had been raped. He let her in, and she then called the police. This part of her testimony was corroborated by the occupant, and by the police officers who responded to her call and arrested Sandoval. The police also testified that she had bruises on her face.

Sandoval testified that while they were living together he and S____ had had anal intercourse frequently, that she had enjoyed it and even on occasion had initiated it. When, at the nightclub on New Year's Eve, he accused her of having been with another man, she tearfully confessed, and at his apartment afterward had initiated anal and oral sex with him. But he could not get over her betrayal of him with the other man and eventually ordered her to leave the apartment. She got upset, announced that "I'm going to screw you," and stormed out of the apartment.

On direct examination of S____ the prosecutor had asked her whether she had ever had anal sex with anyone besides Sandoval, and she had answered "No." She had also testified that she had not dated since the rape. On cross-examination, defense counsel, after reminding S____ of her denial that she had ever had anal sex with anyone besides Sandoval, said, "Now, you know a fellow named ..."--at which point the prosecutor interrupted with an objection. Out of the hearing of the jury, the defendant's lawyer explained that he had a witness sitting in the hallway who would impeach S____'s testimony by testifying that he had had anal sex with her, that she had enjoyed it, and that he had seen her shortly before the trial "hanging all over a gentleman friend of hers" at a bar. The judge refused to allow the witness to testify but did instruct the jury, just before the closing arguments, that it was to disregard the testimony that S____ had not had anal intercourse with anyone besides Sandoval.

The evidence was excluded on the authority of Illinois' rape shield law, on which see the useful discussion in Comment, "Toward a Consistent Recognition of the Forbidden Inference: The Illinois Rape Shield Statute," 83 J.Crim.L. & Criminology 395 (1992). The law is understood to forbid the introduction in a rape case of evidence concerning the victim's sexual activities with persons other than the defendant. True, this is not quite what the law says. It says that in prosecutions for rape (called "criminal sexual assault" in Illinois) and related offenses, "the prior sexual activity or the reputation of the alleged victim is inadmissible except as evidence concerning the past sexual conduct of the alleged victim with the accused." Ill.Rev.Stat. ch. 38 p 115-7(a). Evidence of sexual activity with other people besides the accused could often be described as evidence concerning--bearing on, related to--the past sexual conduct of the alleged victim with the accused. But that is not how the statute is interpreted. As explained in the decision of the Supreme Court of Illinois affirming Sandoval's conviction, the statute limits evidence of the victim's sexual activity to her activity with the defendant, period. People v. Sandoval, 135 Ill.2d 159, 176, 142 Ill.Dec. 135, 143, 552 N.E.2d 726, 734 (1990) (reversing the decision of the Illinois Appellate Court, which had reversed Sandoval's conviction). The interpretation of the statute by Illinois' highest court binds us, and establishes that the prosecutor violated state law when he asked S____ about her history of anal intercourse with persons other than the defendant and that the defense lawyer violated state law when he tried to cross-examine her about it. The prosecutor is not authorized to waive the protections of the rape shield law--for they are protections as much for the rape victim as for the prosecution of rape cases--and if he does so this does not open the door to defense counsel to disregard the rape shield law in his cross-examination of the victim. Id. at 180, 142 Ill.Dec. at 140, 552 N.E.2d at 731.

But Illinois cannot, through a rape shield law or anything else, deprive a criminal defendant of his federal constitutional right to confront the witnesses against him, a right that has been held to imply the further right, though not one of unlimited extent, to cross-examine the prosecutor's witnesses. Davis v. Alaska, 415 U.S. 308, 315-18, 94 S.Ct. 1105, 1109-11, 39 L.Ed.2d 347 (1974); Stephens v. Miller, 989 F.2d 264, 267 (7th Cir.1993). In this as in most rape cases, the key witness, and only eyewitness (apart from the alleged rapist), was the victim of the alleged rape; and the essential part of her testimony--that she was forced against her will to submit to sexual intercourse with the defendant--was not directly corroborated, although there was some corroboration, as we shall see. The principle of the rape shield law, designed as it is to exclude evidence that even if relevant has little probative value but great capacity to embarrass and distract evidence that is considered to shift the balance of proof too far in favor of the rape defendant, has been held to be constitutional. Michigan v. Lucas, --- U.S. ----, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991). But the constitutionality of such a law as applied to preclude particular exculpatory evidence remains subject to examination on a case by case basis. Stephens v. Miller, supra, 989 F.2d at 267-268; Moore v. Duckworth, 687 F.2d 1063, 1065 (7th Cir.1982); United States v. Begay, 937 F.2d 515, 524 (10th Cir.1991).

Sandoval argues that once S____ testified that she had never had anal intercourse with anyone besides Sandoval, and by so testifying buttressed her testimony that she had not consented to have anal intercourse with him on the night in question, defense counsel was entitled to impeach her testimony by asking her whether she had had consensual anal intercourse with X____, and if she denied that she had, to call X____ to the stand and elicit testimony to the contrary from him. This line of inquiry would clearly have been precluded by the rape-shield statute, constitutionally applied, had she not testified about her history of anal intercourse. The essential insight behind the rape shield statute is that in an age of post-Victorian sexual practice, in which most unmarried young women are sexually active, the fact that a woman has voluntarily engaged in a particular sexual activity on previous occasions does not provide appreciable support for an inference that she consented to engage in this activity with the defendant on the occasion on which she claims that she was raped. And allowing defense counsel to spread the details of a woman's sex life on the public record not only causes embarrassment to the woman but by doing so makes it less likely that victims of rape will press charges.

We must consider what difference it made that S ____ testified about her other sexual activities (or abstentions). If that testimony was irrelevant, the defense would not, under standard principles of evidence, have been permitted--and certainly would not have had a constitutional right--to impeach the testimony with extrinsic evidence (that is, testimony by X____). Taylor v. National Railroad Passenger Corp., 920 F.2d 1372, 1375 (7th Cir.1990). But her testimony might have been thought relevant on the theory that it was calculated or at least likely to strengthen the prosecution's case by reducing the likelihood that she had consented to anal intercourse with Sandoval on the occasion in question. If so, the defense would have a stronger case for being permitted to rebut the testimony, if necessary by extrinsic evidence, lest the jury be left with a misleading impression. As we have...