U.S. v. Shaw, 86-5363

• Court: U.S. Court of Appeals — Eighth Circuit
• Writing for the Court: Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BOWMAN; JOHN R. GIBSON
• Citation: U.S. v. Shaw, 824 F.2d 601 (8th Cir. 1987)
• Decision Date: 12 August 1987
• Docket Number: No. 86-5363,86-5363
• Parties: , 23 Fed. R. Evid. Serv. 949 UNITED STATES of America, Appellee, v. James SHAW, Appellant.

Page 601

824 F.2d 601

56 USLW 2114, 23 Fed. R. Evid. Serv. 949

UNITED STATES of America, Appellee, v. James SHAW, Appellant.

No. 86-5363.

United States Court of Appeals Eighth Circuit.

Submitted March 12, 1987.

Decided July 14, 1987.

Rehearing Denied Aug. 12, 1987. SSRAPE: evidence of

11-year-old sexual abuse victim's past sexual

behavior was inadmissible in prosecution

for carnal knowledge.

Stanley E. Whiting, Winner, S.D., for appellant.

Bonnie Ulrich, Asst. U.S. Atty., Sioux Falls, S.D., for appellee.

Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BOWMAN, Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

After hearing testimony that James Shaw had engaged in numerous acts of sexual intercourse with S.A., his eleven year old foster daughter, a jury found Shaw guilty of seven counts of carnal knowledge, 18 U.S.C. Secs. 1153, 2032 (1982). Shaw's primary contention on appeal is that the district court ¹ erred in refusing to allow evidence of S.A.'s past sexual behavior for the purpose of proving that Shaw was not the person responsible for S.A.'s ruptured hymen. We conclude that the testimony at trial failed to establish that there was an "injury" under Federal Rule of Evidence 412(b)(2)(A), and the district court thus correctly excluded evidence of S.A.'s past sexual behavior. Shaw also argues that certain testimony of two witnesses was inadmissible hearsay. We affirm the district court's judgment of conviction.

In February 1985, an anonymous caller informed the South Dakota Department of Social Services of rumors that S.A. was being physically abused at her home. Angela Keierleiber, a social worker, met with S.A. at her school. During the course of several conversations, S.A. told Keierleiber about her frequent instances of sexual intercourse with Shaw. This led to the ten-count indictment of Shaw, charging him with eight acts of carnal knowledge in violation of 18 U.S.C. Secs. 1153 and 2032 and two acts of interstate transportation for immoral purposes in violation of 18 U.S.C. Sec. 2421 (1982).

At trial S.A. testified that about two weeks before Easter 1984, when she was eleven, Shaw first subjected her to sexual intercourse. Two weeks later they again had sexual intercourse. She testified that it then began happening regularly, occurring about twice a week, sometimes more. It continued because she was afraid to tell anyone. S.A. testified specifically as to the incidents supporting the counts for which Shaw was indicted, usually relating the date of each act of sexual intercourse to an event, such as a summer fair, a holiday, or a sporting event.

S.A. testified that the last sexual incident occurred in March 1985. On April 11, 1985, Keierleiber had S.A. removed from her home and placed in another foster home. That same day a physician's assistant, Betty Kalblinger, examined S.A. At trial the government elicited Kalblinger's testimony regarding the results of this examination. She testified that the condition of S.A.'s hymen indicated that S.A. had engaged in sexual intercourse. Two other government witnesses who examined S.A., Catherine Buck and Dr. Clark Likness, gave similar testimony.

After a five-day jury trial, Shaw was convicted of seven counts of carnal knowledge. He was sentenced to three concurrent fifteen-year terms of imprisonment and four concurrent ten-year terms of imprisonment, with the ten-year terms to be served consecutive to the fifteen-year terms. This appeal followed.

I.

The government undoubtedly introduced evidence concerning S.A.'s hymen to establish that its condition was consistent with her having engaged in sexual intercourse. This evidence, coupled with S.A.'s testimony, allowed the inference that Shaw caused this condition when they had sexual intercourse. Shaw contends that he should have been allowed to rebut this evidence by showing that someone else was responsible for the condition of S.A.'s hymen. ² In compliance with Federal Rule of Evidence 412(c)(1), ³ Shaw filed a pretrial written motion, proffering evidence to rebut the government's evidence of the condition of S.A.'s hymen. The motion asserted that seven young boys would testify that they had sexual intercourse with S.A., one that he had sexual intercourse with S.A. fifty times. The district court rejected Shaw's motion, which was raised several times during the trial, ruling as a matter of law that the rupturing of a hymen does not constitute a Rule 412(b)(2)(A) "injury."

In 1978 Congress made the first addition to the Federal Rules of Evidence when it enacted Rule 412, the federal rape-shield law. Rule 412 prohibits the introduction of evidence of an alleged rape victim's past sexual behavior subject to three exceptions. The relevant exception to this general rule, Rule 412(b)(2)(A), states that, subject to the procedural and relevancy requirements of subdivision (c), evidence of specific instances of an alleged rape victim's past sexual behavior with persons other than the accused is admissible if "offered by the accused upon the issue of whether the accused was or was not, with respect to the alleged victim, the source of semen or injury." Only the government can raise "the issue" of the source of an injury. Rule 412's general rule prohibiting past sexual behavior evidence could be too easily evaded if a defendant could introduce evidence of an injury to the complainant only to then attack it with evidence of the complainant's past sexual behavior. See generally 23 C. Wright & K. Graham, Federal Practice & Procedure Sec. 5388, at 595 (1980).

Accordingly, the question before us is whether the testimony elicited by the government regarding the condition of S.A.'s hymen created an issue of whether Shaw was or was not, with respect to S.A., "the source of semen or injury." Fed.R.Evid. 412(b)(2)(A). On appeal both parties seem to assume, as the district court did, that the consequences to S.A.'s hymen constitute an injury, and the only issue is whether this type of injury falls within Rule 412's injury exception. We conclude that our analysis should not start with this assumption, but rather, we must examine the relevant testimony to determine whether the described condition of S.A.'s hymen constitutes an injury. In so doing, we look particularly to the government-elicited testimony, but we also feel it is appropriate to consider any testimony, including that elicited by the defense, if it helps determine whether the government's evidence has created an issue of the source of an injury.

Betty Kalblinger, a physician's assistant who examined S.A. on April 11, 1985, provided the only testimony in the government's case-in-chief regarding S.A.'s hymen. Kalblinger testified that she performed a pelvic examination and found that S.A.'s "vaginal orifice was widened," which "indicated that there had been sexual activity or some form of vaginal dilation going on." Tr. 303. "The hymen was not intact"; it had been "penetrated." Tr. 304. She did not observe any tears in the hymen, any scars, any tears that may have healed, or any injury to the vaginal canal. Tr. 310. She explained that at birth a female normally has a small perforation in her hymen. When a female has sexual intercourse, it creates "a widening of the vaginal orifice." Tr. 313-14. However, she explained that:

[T]here is a misunderstanding as to the tearing of a hymen. The hymen doesn't become torn or anything. It just becomes more stretched and open and the hymen * * * stretches out. It isn't like tearing it open or cutting it open or anything like that. It's just a normal process of widening out.

Tr. 314.

The defense's cross-examination of Kalblinger on this issue concluded with the following:

Q: Therefore when people talk about a ruptured hymen, they are talking about perhaps some type of vaginal penetration that has torn the hymen, is that correct?

A: It has destroyed the intactness of it.

Tr. 316.

As a rebuttal witness, the government called Catherine Buck, a certified nurse midwife who examined S.A. on September 17, 1985. ⁴ She testified that in researching S.A.'s history, she learned "that [S.A.] had been seen by one practitioner who said [S.A.] was not a virgin, said [S.A.] had a ruptured hymen." Tr. 618. She testified that "[t]he hymen is a stretchy ring of tissue" about the vaginal opening and that the size of the hymenal opening "is not absolute because of the stretchy nature of the tissue." Tr. 627. She further testified that the opening to S.A.'s vagina permitted an examination and, based on this examination she concluded that intercourse "was a possibility." Tr. 623.

The government also called as a rebuttal witness Dr. Clark Likness, a board-certified family practice physician who examined S.A. in January 1986. He testified that there was a definite widening or opening of S.A.'s vaginal orifice. He explained that the hymen is "made of elastic tissue which is in fact stretchable." Tr. 665. As to S.A., "there was no hymenal membrane present at all and for the most part her hymenal ring in the lower segments of her vaginal opening was gone." Tr. 654. He did not find any blood, cuts, scratches, scars, or fresh bruises. Tr. 649. Dr. Likness explained that many activities besides sexual activity can cause a hymen to lose its intactness. He testified that "as the female gets older, through activities, physical activities, sexual activities and just normal growth and development the hymen itself will slowly open up. We're talking about the hymenal membrane. It will leave remnants of what we call a hymenal ring and that ring is obvious in all females." Tr. 659. He thus explained that:

[T]he old adage was that in order for a woman to have intercourse she would have to rupture her hymen which in turn would cause bleeding. That is not founded anymore. That in fact is very untrue. It has become kind of an obsolete theory. In fact in most cases we now see young women capable of having vaginal intercourse...