US v. Saunders, Crim. No. 90-00074-A.

CourtUnited States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
Citation736 F. Supp. 698
Docket NumberCrim. No. 90-00074-A.
PartiesUNITED STATES of America v. Henry SAUNDERS.
Decision Date16 May 1990

W. Neil Hammerstrom, Jr., Asst. U.S. Atty., Alexandria, Va., for U.S.

Drewry B. Hutcheson, Jr., Alexandria, Va., for Henry Saunders.


ELLIS, District Judge.

Defendant stands accused of rape. The indictment charges that he unlawfully, knowingly, and willingly caused another person to engage in a sex act by using force and threats to place that person in fear of death or serious bodily injury, in violation of 18 U.S.C. § 2241(a). Pursuant to Rule 412(c)(1), Fed.R.Evid., defendant filed the requisite timely Motion for Leave to Offer Certain Evidence Concerning the Victim's Past Sexual Behavior. Specifically, the motion set forth defendant's intention to offer the following evidence:

(1) Defendant's testimony that he had sexual relations with the alleged victim on a number of occasions prior to the alleged rape;
(2) Defendant's testimony, and that of an acquaintance, as to specific occasions on which the acquaintance had sex with the alleged victim and related this fact to the defendant prior to the alleged incident that is the basis of the indictment.

The first category of evidence, according to defendant, is offered on the issue of consent, while the second is offered on defendant's state of mind.1

Because these matters fell, in part, within Subdivision (b) of the Rule, the Court held an in camera hearing to determine the admissibility of the evidence. Only the defendant, the alleged victim, and an FBI agent testified. The Court then took the matter under advisement. Thereafter, the Court reopened the Rule 412 hearing, noting that the record did not disclose whether defendant's Rule 412 motion had been served on the alleged victim as required by subsection (c)(1) of the Rule. Also, consistent with In re McDaniel, 861 F.2d 714 (4th Cir.1988) (unpublished opinion), the Court appointed counsel for the alleged victim to ensure that her position would be properly presented and advocated. At the reopened hearing, all counsel, including the alleged victim's counsel, presented arguments, but declined the opportunity to present any additional testimony.

The pertinent facts are easily summarized. Defendant and the alleged victim have known each other since their teen-age years. Defendant testified he had sex with the alleged victim about half a dozen times during the period spanning 1983 to 1987. From 1987 to the alleged incident on February 9, 1990, defendant saw the alleged victim on only a couple of occasions, none of which involved sex. The alleged victim, by contrast, denies ever having had sex with defendant, except on the night of the alleged incident. The alleged victim also testified that at the time of the alleged rape, she was engaged to a man by whom she had borne two children. The FBI agent testified that defendant, when interviewed prior to his arrest, claimed to have had sex with the alleged victim on only two prior occasions.

From the parties' proffers, it appears, not surprisingly, that their versions of the evening's events sharply conflict. Defendant contends that consensual sexual relations occurred at his home early in the evening, coupled with illegal drug use. The alleged victim denies any consensual sex and claims instead that defendant coerced her to have sex with him when he was driving her home. Defendant allegedly accomplished the coercion by driving to a secluded area, brandishing a tool or pipe, grabbing the alleged victim by the throat and threatening her with serious bodily injury unless she submitted.

At the first in camera hearing, defendant called an acquaintance as a witness. The acquaintance's testimony, distilled to its essence, was that in the week prior to the alleged incident, the acquaintance had consensual sexual relations with the alleged victim over a three-day period and told defendant about it before the alleged incident. Defendant claims this testimony should be admitted because it bears on his state of mind. The alleged victim denied ever having had sex with the acquaintance.

This, then, is the factual record before the Court in connection with defendant's Rule 412 motion. At the outset, it is important to note that the Court declines the government's invitation to resolve the motion by making witness credibility judgments or by rejecting certain inferences invited by arguably ambiguous testimony. For example, the government attacked the credibility of defendant's acquaintance and urged the Court to conclude that the witness' testimony that "I had her" and "I had her home for three days" did not necessarily mean that sexual relations occurred. The government also attacked defendant's credibility by presenting the FBI agent's testimony concerning defendant's prior inconsistent statement regarding the number of instances of sex defendant had with the alleged victim in the past. Although the government ultimately abandoned this line of argument, its invalidity is worth confirming. Except perhaps in extreme circumstances, not present here, courts are not free to make Rule 412 rulings on the basis of credibility judgments. Those judgments are for the jury or ultimate factfinder. Instead, courts must consider and resolve issues under Rule 412 without regard to whether a jury or factfinder will ultimately accept or reject all or part of the testimony.2 Nor may courts considering a Rule 412 motion reject inferences reasonably permitted by the testimony or resolve testimonial ambiguities to foreclose such inferences. These, too, are the province of the jury. With this as background, the Court turns next to an analysis of the knotty Rule 412 issues presented in the case at bar.


Analysis appropriately begins with recognition of Rule 412's policy underpinnings. Fundamental to Rule 412 is the notion that the law protects women3 from forced sexual contact and that this protection extends to all persons even though their past sexual behavior or reputation suggests they are less than virtuous. Put succinctly, the law recognizes that even women of easy virtue may also be victims of rape and deserve the full protection of the law. Too often, rape trials have wrongly focused on the past sexual behavior and promiscuous reputation of alleged victims, as if to say to the jury that such persons, as a result of their past sexual behavior or reputation, cannot validly withhold consent. See e.g., S. Maxwell, Criminal Procedure 248 (1896) ("The previous conduct of the prosecutrix, as to whether or not she had connection with other men, is a proper subject of inquiry, as tending to show a want of chastity, and therefore that she would be more likely to consent than a virtuous woman ...")4 Rule 412 flatly rejects this notion; instead, it recognizes that whether a woman has consented once or myriad times, and whether she has done so for love or money, she is, in any event, entitled by law to be free from nonconsensual sexual contact. A woman's past behavior, however unchaste, confers on no one a license to commit rape.

At the same time, however, Rule 412 also recognizes the perplexing ambiguities that often surround rape allegations. Accordingly, the Rule recognizes that there may be special circumstances where the alleged victim's past sexual behavior may play a role in ascertaining whether the crime of rape occurred. To this end, the rule carves out two specific exceptions. The first pertains to evidence of the alleged victim's past sexual behavior with the accused offered solely on the issue of consent. The second concerns evidence of the victim's past sexual behavior with other persons and is limited to those cases where it is relevant to whether the accused was the source of semen or injury to the alleged victim. Even evidence falling within the two exceptions may not be admissible if the court determines that it is not relevant or that its probative value is outweighed by its unfair prejudicial effect. See Rule 412(c)(3). Finally, quite apart from the two special exceptions, Rule 412 necessarily recognizes that the admissibility of certain evidence may be constitutionally mandated even if neither exception applies. Thus, analysis under Rule 412 appropriately begins with a consideration of whether the proffered evidence falls within either of the two exceptions of the Rule. If so, the Court must still examine the evidence to determine whether it is relevant and whether its probative value outweighs the danger of unfair prejudice. The evidence is admissible if it falls within the exceptions and its probative value outweighs the danger of any unfair prejudicial effect it may have. But, even if the evidence does not fall within the Rule's two exceptions, the court must still consider whether its admissibility is constitutionally required. Finally, in this Circuit, Rule 412 is not a bar to evidence of the alleged victim's past sexual behavior where that evidence is offered to show the accused's state of mind. But even in this event, admissibility still hinges on whether the evidence passes muster under Rule 403, Fed.R.Evid. See Doe v. United States, 666 F.2d 43 (4th Cir.1981). With this blueprint for analysis in mind, the Court turns next to an examination of the two categories of evidence offered by defendant in this case.

A. The Alleged Victim's Past Sexual Behavior With Defendant

Defendant's offer of proof concerning his past sexual relations with the alleged victim falls squarely within one of the Rule's exceptions. It is evidence of the alleged victim's "past sexual behavior with the accused and is offered by the accused upon the issue of whether the alleged victim consented to the sexual behavior with respect to which rape or assault is alleged." Rule 412(b)(2)(B).

But the analysis does not end here; the Court must go on to consider whether evidence of a sexual...

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