Don’t Tell The Jury You’re A Virgin

The Colorado Supreme Court held today that evidence offered by the prosecution that a victim of sexual assault is a virgin is not admissible to show that a vaginal tear discovered in a rape exam was caused by non-consentual sex with the defendant.

The case illustrates where we stand today in the evolving story of how the legal system and our society understands sex and rape.The Case

This sexual assault case involved a woman in her twenties who was passed out drunk at a party in Denver, Colorado in 2002, when the defendant’s financee discovered him having sex having sex with the victim.

The Virginity Evidence

The prosecution argued at trial over the objection of the defendant that the vaginal tear later discovered in a rape exam at a hospital must have been caused by non-consentual sex with the defendant because she was a virgin.

On appeal, the defendant argued that Colorado’s rape shield statute, which limits evidence of prior sexual history in sexual assault trials, barred the evidence.  Rape shield laws (the first of which was enacted in Michigan in 1974) were enacted to prevent defendants in rape trials from turning into exposes on the sexual morality of the victim, a process that can discourage victim cooperation in meritorious rape prosecutions.  The Colorado Court of Appeals disagreed in an unpublished opinion and found that the rape shield law did not bar the testimony.

The Colorado Supreme Court’s ruling today affirmed the trial court and Colorado Court of Appeals, but on different grounds.

It held that since evidence of virginity spans such a long period of time opening the door to a great deal of evidence that sheds little light on the particular incident being considered in the trial, while providing only modest evidence of a crime (a least in this case), that evidence of virginity should have been kept out at trial.

Harmless Error

Despite receiving a favorable ruling on this evidence question, however, the defendant still lost his appeal.  Since the defendant was caught in the act, he didn’t deny that he had sex with the victim, and instead only argued at trial that she had consented.

The Colorado Supreme Court found that under the circumstances that the admission of virginity evidence was “harmless error.”  This escape valve in the appellate system allows appeals courts to sustain convictions of clearly guilty defendants even when mistakes are made at trial.

In this case, the jury had specifically found that the defendant was guilty of sexual assault because the victim was incapacitated at the time, something that makes the kind of struggle that could produce a vaginal tear irrelevant.  This finding was supported by evidence that the victim had passed out drunk shortly before the defendant was found having sex with her, that the victim testified she awoke with the defendant on her back at the time the finacee let out a “blood curdling scream”, and testimony that the victim remained highly intoxicated after the incident.  Thus, this harmless error ruling was based on the notion that evidence of the cause of the vaginal tear didn’t strongly tend to prove or disprove any of the legal elements that the jury had to find to convict.

Despite having only tangential legal relevance, the prosecution may have been eager to get evidence of virginity into the record to help convince jurors and the judge of the legally irrelevant point that the harm in the case was serious.  The virginity evidence may also have helped to quash the idea that the victim would have engaged in casaul sex (the defense theory).  And, the virginity evidence may have helped to humanize the victim as someone other than a drunk in the jury’s eyes, something that is also legally irrelevant but potentially a fact that could influence the jury.  Attorneys frequently look for legally relevant grounds to admit marginal evidence, knowing that it will have impact on legally irrelevant but practically important issues, and frequently judges err on the side on admitting all legally relevant evidence. 

The claim of virginity may also have influenced law enforcement and the prosecution in their decision to bring the case.

Why Take The Case?

The Colorado Supreme Court didn’t have to take this case.  Like most state supreme courts and the U.S. Supreme Court, it takes cases only when it wants to make a legal point.

So, why did the Colorado Supreme Court take this case?

It didn’t end up protecting the substantive rights of Carlos Fletcher.  He still lost.

It didn’t do so to clarify the law.  The Colorado Court of Appeals decision in this case was not published.  In fact, both the Colorado attorney general and Colorado public defender keep collections of unpublished opinions, so the case still sent a message to the lawyers who handle the vast majority of criminal appeals in the state.  But, this unpublished opinion would be poor precedent in any future case and likely wouldn’t be considered by a trial judge in a pending case.

In all likelihood, the Colorado Supreme Court took this case to send a message to trial judges in sexual assault cases.  This message upholds the spirit of the rape shield law, which is that rape cases should focus on the incident in question, not on the lifetime sexual experiences of the victim, even where it isn’t clear that the rape shield law bars the evidence by its own terms, an issue the Colorado Supreme Court left for another day in this case.

While in this case, the prosecution wanted to use the virginity to prove that a vaginal tear was sexual assault related, the Colorado Supreme Court was likely concerned that in other cases, defendants might be able to thwart the Colorado rape shield law’s intent by arguing that prior sexual activity could have been the cause of a vaginal tear offered as physical evidence in a sexual assault case.

The modern legal system has repeatedly looked for ways to keep raunchy sexual history evidence out of court, something that was also a factor in Colorado’s adoption of “no fault” divorce that makes evidence of adultery inadmissable and irrelevant in divorce court.

Proof Of A New Law Enforcement Trend

Aside from the legal holding the case was also notable for the fact that it was brought at all. 

Prosecutors have historically been reluctant to bring both acquitance rape cases, out of concern that proving lack of consent can be difficult, and cases involving drunk victims of sexual assault, out of a fear that the jury will blame the victim.  But, changing attitudes towards consent to sex, and clear evidence, persauded police to investigator, persauded prosecutors to bring this case, and persauded a jury to convict.

The Sentence

The defendant, Carlos Fletcher, was sentenced to three years in prison and an indeterminate period of parole afterwards, and will serve that sentence (less an allowance for “good time” for good behavior in prison), as a result of this ruling.  The record does not disclose if Fletcher remained free on bond while he appeal was pending.  If not, he has already served his prison sentence, and this case was really about his parole term and the civil disabilities that result from being branded as a sex offender.  If so, he will commence serving his sentence in the near future.

An appeal to the U.S. Supreme Court is unlikely because the ruling was based entirely on state evidence rules, rather than an interpretation of the United States Constitution or federal law.

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Andrew Oh-Willeke

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