EvidenceProf Blog has had quite a few posts on rape shield laws that raise very difficult questions. Here is another one:
The Court of Appeals of Kansas' recent opinion in State v. Jackson, 2008 WL 538948 (Kan.App. 2008), contains an interesting application of the rape shield rule. In Jackson, Darrell Jackson was a family friend who babysat for A.C., a girl who was between ten and twelve years old between 1999 and 2002. According to A.C., during this time period, Jackson sexually assaulted her more than 50 times. During this period of time, A.C. was twice placed into the custody of the Kansas Department of Social and Rehabilitation Services (SRS). At trial, the prosecution:
"emphasized-from opening statement to closing argument-that A.C.'s behavior had deteriorated in significant ways starting about the time of the alleged offenses by Jackson and continuing up until the time of trial. In opening statements, the prosecutor said that A.C.'s mother had noticed changes beginning in summer 1999; A.C. was 'acting out, a lot more argumentative, a lot more disagreeable, ... and really behaving badly.' Later in opening, the prosecutor said that after A.C. went into foster placement in 2002, her mother found out 'why [A.C.] has been acting up and behaving so badly between 1999 and her final entry into SRS custody, 2002'-that she had been abused by Jackson. A.C.'s mother testified as forecast in the opening statement, saying that A.C.'s behavior had changed from 1999 until early 2002, during which time she had been 'real hateful to people.'"
The prosecution also argued that A.C. was fearful of returning home from SRS custody because she feared being placed in close proximity to Jackson.
Meanwhile, Jackson attempted to introduce evidence of other sexual assaults reported by A.C. between 1999 and 2002.
Go read the whole post for the rest of the story. I think this is a very tricky case and shows that rape shield laws fail to contemplate a variety of scenarios. I'm not sure that the court has clear guidance in that matter. I think the court's decision to admit made sense, but the emphasis on the "sexual act" requirement seems a little odd. This is another data point to support the proposition that our rape shield laws might need some fine-tuning.
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