ANNAPOLIS – While advocates for rape victims attacked a court ruling last week that a victim’s prior conversations with the defendant can be used against her in court, prosecutors said the damage was minimal, and one said it might even help.
In its ruling Thursday, the Court of Appeals said a defendant who testifies that the victim agreed to have sex in exchange for drugs can cite a previous offer by the same victim.
Nadja Cabello, director of Montgomery County’s sexual assault program, said “it’s just one more hole” in the state’s rape shield law, which in general prohibits the use of evidence about a victim’s chastity.
But John Cox, chief sex-offense prosecutor for Baltimore County, said the ruling may be useful.
As Cox sees it, the ruling will guarantee that anything the victim said or did of a sexual nature with anyone other than the defendant is off-limits, whether it involved physical contact or not.
“In my opinion, what they have actually done is expand the protection of the rape shield law,” he said.
Meanwhile, Assistant Attorney General Gary Bair, whose office handled the case on appeal, said the defendant still has to show that a conversation has a bearing on the case.
“It’s only going to be admissible where the defendant shows some special relevance,” said Bair, chief of the division of criminal appeals and a member of the board of the Maryland Coalition Against Sexual Assault.
At the 1993 trial, in which two 15-year-olds and a 16-year- old were convicted of raping a 42-year-old woman, defense attorneys were prevented from alluding to a purported offer by the victim to exchange sex for drugs on a prior occasion.
The defendants appealed, saying the conversation fell under an exception to the shield law for “evidence of the victim’s past sexual conduct with the defendant.”
The Court of Special Appeals rejected that argument, saying the conversation didn’t entail any physical contact.
But the Court of Appeals disagreed, citing court rulings in California, New York, Alaska and Oregon, as well as a dictionary definiton of “conduct.”
“The act of making an offer to another person is certainly conduct, whether it is by spoken or written words or by gestures,” the court said in a unanimous opinion.
The court did not overturn the convictions, however, saying that the conversation in question was irrelevant because there was no testimony that the victim agreed to have sex in exchange for drugs on the night of the rape.
Cabello was not reassured. “If they’re now including just a conversation, I think that would be so incredibly hard to prove, one way or the other…. It’s so flimsy.”
And Sue Song, director of psychiatry at Prince George’s Hospital, was alarmed.
“Assault is assault,” said Song, who helps run the hospital’s sexual assault center.
“If you are dealing with [a victim] who is a drug addict…, their judgment may not be that sound about anything.”
Song said an addict might well “do anything to get the drug…, [but] that does not mean that anybody has a right to sexually assault that individual.”
Cheryl Banks, a community educator at the Prince George’s sexual assault center, said she sees increasing confusion about what rape really is.
“I’m getting a lot of questions, mostly from boys in high school: if he starts to rape her and she starts to enjoy it, it is still rape?” she said.
“My response is: which movie did you see that in…? I think there’s an expectation on their part that things are supposed to be violent…[that] good sex involves violence.”
“That alarms me,” said Banks. “I did not get that 20 years ago.”
The Court of Appeals ruling drew a favorable reaction from defense attorneys.
“If you offer to perform sex for drugs, there’s some indication of your willingness to do that,” said John Copacino, a defense lawyer and director of the criminal justice clinic at Georgetown University.
Wendell Bates, who represented one of the defendants at trial, said, “My experience has been that offers of sex for drugs take place more often than the general public might believe, and if there is a viable defense, with facts to back it up with, then obviously, we would like to put forth that argument to the jury.”
But Bates said the court’s decision was a hollow victory for his client, Floyd Jackson Bailey. “We’re disappointed with the result…because that doesn’t help Mr. Bailey at all,” he said. Bailey received a sentence of 20 years. His co-defendants, Leroy Anthony Shand and Kevin Christopher Allen, received sentences of 30 and 18 years, respectively. -30-