In State v. Jones, the WA Supreme Court held that the Rape Shield Statute does not stop a defendant from offering evidence or cross-examining a victim about the events on the night of the alleged sexual encounter, including the victim’s sexual conduct with other individuals during a wild sex party.

Defendant Mr. Jones was charged with first and second degree rape after his niece, K.D., claimed that Jones put his hands around her neck and forcibly raped her.  At trial, the jury acquitted Jones of first degree rape but could not reach a decision on second degree rape.  Jones was tried again for second degree rape along with the aggravating factor of being an individual in a position of trust to the victim.

Jones wanted to present evidence that K.D. consented to sex during an all-night sex party.  The party included one additional woman and two additional men, cocaine and alcohol.  During this party, K.D. consented to sex with all three men (which included Jones).  The judge, citing the Rape Shield Law, would not allow Jones to introduce such evidence because it was only being introduced to attack K.D.’s credibility.

Furthermore, during the trial, the prosecutor noted that Jones was compelled to give a DNA sample (did not do so voluntarily) and that he refused to clear up matters with the police.  At the end of trial, the judge backtracked a little and claimed that it allowed Jones to present evidence that the sex was consensual (but without mentioning the sex party).   Jones was convicted and appealed.  Jones claimed that the trial court erred when it refused to allow him to present evidence of the sex party and for the prosecutor’s inappropriate comments with respect to speaking with police and giving a DNA sample.

The Court of Appeals agreed with the trial court, but the Washington Supreme Court reversed.

First, the court reasoned that the trial court violated Jones’ 6th Amendment rights by refusing to allow Jones testify about the sex party.  “Jones’s evidence, if believed, would prove consent and would provide a defense to the charge of second degree rape.”  Furthermore, since no State interest can possibly be compelling enough to stop the introduction of evidence of high probative value, the trial court violated Jones’ Sixth Amendment rights when it barred his testimony.

Second, the Court held the Rape Shield Statute did not apply.  Washington’s rape shield law provides:

Evidence of the victim’s past sexual behavior including but not limited to the victim’s marital history, divorce history, or general reputation for promiscuity, nonchastity, or sexual mores contrary to community standards is inadmissible on the issue of credibility and is inadmissible to prove the victim’s consent except as provided in subsection (3) of this section, but when the perpetrator and the victim have engaged in sexual intercourse with each other in the past, and when the past behavior is material to the issue of consent, evidence concerning the past behavior between the perpetrator and the victim may be admissible on the issue of consent to the offense.

Here, the Court decided the Rape Shield Statute protects victims from testifying about past sexual behavior.  In this case, however, Jones was attempting to introduce evidence of present sexual behavior.  Thus, to deny such evidence under the rape shield law would be to read out the term past.   Furthermore, since the evidence that Jones sought to be introduced involved Jones’s defense and version of what occurred the night of the crime, the denial of such evidence was NOT harmless error.  Jones is entitled to a new trial.

My opinion?  Under the circumstances, the court made a well-reasoned decision.  Their interpretation of the Rape Shield Statute appears correct: although one cannot admit evidence of the victim’s past sexual history, the statute does not prevent present sexual history from being admitted into evidence.  This evidence seems especially relevant when the victim is engaged in exploits in the manner described in this case.  Good decision.

Please contact my office if you, a friend or family member are charged with a Sex Offense or any other crime. Hiring an effective and competent defense attorney is the first and best step toward justice.