Update: On April 22, 2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the argument here.

On March 27, 2019, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Cedric N. Jeffries, 2018-0338. At issue in the case is whether Ohio’s rape-shield statute prohibits evidence of prior sexual abuse suffered by the victim.

Case Background

D.S., a minor, lived in foster care until the age of six. When D.S. was six, she moved in with her grandmother. Cedric Jeffries was her grandmother’s adult son, and he lived in the house as well. D.S. viewed Jeffries as a father figure, and called him “Dad.”

D.S. testified that Jeffries began touching her inappropriately starting at age six, and that this inappropriate conduct continued for years, but she never told anyone for fear of being sent back to foster care. D.S. finally ran away from home, and told her school principal about the abuse. Jeffries was arrested, and charged in a four-count indictment with two counts of rape and two counts of kidnapping.

Prior to trial, Cuyahoga County Common Pleas Court Judge Janet Burnside held an in-camera hearing to determine whether to admit evidence of D.S. having been sexually abused by a foster brother when she was approximately four or five years old, which D.S. had promptly reported to a social worker at the time. Judge Burnside determined the incident did involve sexual activity, was not false, and was protected by the rape shield statute. Therefore, defense counsel was not permitted to question D.S. about the prior sexual abuse or otherwise seek to admit evidence of the abuse.

The jury convicted Jeffries on all counts. Judge Burnside sentenced Jeffries to life in prison with parole eligibility after 15 years. Jeffries appealed.

The Appeal

In a unanimous opinion by Judge Kathleen Ann Keough, joined by Judges Anita Laster Mays and Larry Jones, Sr. the Eighth District Court of Appeals affirmed the trial court’s exclusion of prior sexual abuse evidence under the rape-shield statute. Relying on State v. Boggs, the Court of Appeals held that evidence of both the victim’s prior nonconsensual and consensual sexual activity should be excluded under the statute, if not false, and that the trial court did not abuse its discretion in disallowing any questioning on the prior sex abuse incident.

The Court of Appeals granted Jeffries’s motion to certify the following conflict: “Whether Ohio’s rape shield law prohibition on the admission of ‘specific instances of the victim’s sexual activity’ applies only to consensual sex or whether it also prohibits questions related to prior sexual abuse?” While the Supreme Court of Ohio overruled the certified conflict, it accepted a discretionary appeal on this issue.

Votes to Accept the Case

Yes: Chief Justice O’Connor, Justices Fischer, Kennedy, and Judge Lisa L. Sadler *

No: Justices DeWine, French, and O’Donnell.

*Tenth District Court of Appeals, assigned in lieu of former Justice DeGenaro.

Key Statutes and Precedent

R.C. 2907.02(D) (Ohio’s Rape Shield Law)(“Evidence of specific instances of the victim’s sexual activity . . . shall not be admitted . . . .”)

State v. Gardner, 59 Ohio St.2d 14 (1979) (“[B]y excluding evidence that is unduly inflammatory and prejudicial, while being only marginally probative, the statute is intended to aid in the truth-finding process.”)

State v. Boggs, 63 Ohio St.3d 418 (1992) (“[T]he trial court must ascertain whether any sexual activity took place, i.e., an actual rape or consensual sex. If it is established that either type of activity took place, the rape shield statute prohibits any further inquiry into this area . . . .”)

State v. Stoffer, 2011-Ohio-5133 (7th Dist.) (The rape shield statute addresses only prior consensual sexual activity of the victim and not prior sexual abuse suffered by the victim.)

State v. Williams, 2012-Ohio-5695 (When considering prior bad acts evidence, trial courts should consider the relevance of such evidence, whether the evidence is presented to prove the defendant’s character, and whether the evidence’s probative value is substantially outweighed by prejudice to the defendant.)

Jeffries’ Argument

Ohio’s rape-shield statute does not prohibit questioning a witness about prior sexual abuse. In this case, the fact that the alleged victim did report a prior incident of sex abuse would have contradicted the reasons she gave for her failure to report the alleged assaults in this case, and would have cast doubt on her credibility.

The statute’s legislative intent was to protect victim privacy and to encourage victims to report sexual abuse. Prohibiting evidence of a victim’s prior allegations is contrary to the legislative intent. The Court should hold that the statute only applies to prior consensual activity. The statute’s references to “specific instances of the victim’s sexual activity” implies consensual, not nonconsensual activity.

Additionally, the Court has not applied the rape-shield statute in past cases dealing with sexual abuse allegations. Instead, the Court has relied upon the Ohio Rules of Evidence to balance the evidence’s probative value with its prejudicial effect.

Further, holding that the rape-shield statute includes evidence of prior sexual abuse leads to absurd consequences. Jeffries uses a hypothetical of a victim being unable to explain at trial why she did not yell for help during an assault because, on a prior occasion, she had been assaulted for having done so.

Finally, the Eighth District’s refusal to allow Jeffries to question the victim violated Jeffries’ constitutional rights to a fair trial and due process. Even courts that apply rape-shield statutes to nonconsensual activity allow for an exception in cases where defendants articulate a specific need to use the evidence. This exception is based on the principle that a defendant’s right to trial and to confront witnesses under the Sixth Amendment and the defendant’s right to due process override statutory rape-shield provisions.

State’s Argument

The rape-shield statute’s plain text and the statutory definition of “sexual activity” show that evidence of any sexual activity, whether consensual or nonconsensual, is prohibited, absent an exception. The Ohio Revised Code defines “sexual activity” as sexual conduct or sexual contact, or both. The absence of any qualifier to this definition shows the legislature did not intend to distinguish between consensual and nonconsensual sexual activity in the rape-shield statute.

The general inadmissibility of opinion and reputation evidence of a victim’s sexual activity in the rape shield statute does not show that the legislature intended not to include nonconsensual sexual activity in statute. Opinion and reputation evidence is not limited to qualities over which a person has control. Therefore, the use of the phrase “sexual activity” in the statute cannot show legislative intent to exclude nonconsensual sexual activity from the rape-shield statute.

The statute’s purpose is to protect the victim from undue harassment, encourage the reporting of rape, and to exclude evidence that is unduly inflammatory and prejudicial. These interests are furthered by barring evidence of the victim’s prior sexual abuse. The potential harm victims could suffer for having to recount their past abuse will discourage some victims from reporting a subsequent sexual assault.

Although the Court has held that evidence of prior false allegations may be included as evidence, true allegations of both consensual and nonconsensual sexual activity are excluded. Trial courts must hold hearings to determine if the sexual activity at issue actually occurred. Only if it is determined that the prior accusations were false because no sexual activity took place would the rape shield law permit cross examination of the victim on this subject.  If evidence of prior nonconsensual sexual activity were not protected under the rape-shield statute, a hearing to determine whether prior allegations of nonconsensual sexual activity were true or false would not be necessary because the rape shield law would not apply to the admissibility of either type of evidence. Sexual activity applies to all activity, whether consensual or not.

Finally, all of Jeffries’s constitutional arguments should be struck because the Court declined jurisdiction over these issues.

Jeffries’ Proposed Proposition of Law

Ohio’s rape shield law prohibition on the admission of “specific instances of the victim’s sexual activity” applies only to consensual sex or whether it also prohibits questions related to prior sexual abuse.*

*In his brief Jeffries apologized for this inartfully worded proposition of law, and restated it as follows:

R.C. 2907.02(D)’s prohibition on the admission of “specific instances of the victim’s sexual activity” applies only to consensual sex and does not prohibit evidence of prior sexual abuse perpetrated upon a victim.

State’s Proposed Counter Proposition of Law

R.C. 2907.02(D) applies to any sexual activity, whether consensual or nonconsensual.

Student Contributor: Carson Miller