“To say that the purpose of the rape-shield law is not furthered by excluding evidence of an accuser’s past sexual abuse is to vastly underestimate the insidiousness of victim blaming. We reject Jeffries’s narrow interpretation.”

Justice Donnelly, Opinion of the Court

On April 22, 2020, the Supreme Court of Ohio handed down a merit decision in State v. Jeffries, 2020-Ohio-1539. In a unanimous opinion written by Justice Donnelly, the Court held that Ohio’s rape-shield law prohibits the admission of evidence of an accuser’s prior nonconsensual sexual activity. The case was argued March 27, 2019.

Case Background

D.S., the accuser in this case, lived in three different foster homes before the age of six after her mother lost custody of D.S. and her two half-siblings. In 2006, when D.S. was six, Jeffries’s mother H.G. got custody of D.S. and her two half-siblings. Jeffries, who was the biological father of one of D.S.’s half-siblings, also lived in the house with all of them. Jeffries was not biologically related to D.S. but was a father figure to her. D.S. lived with H.G. and Jeffries until March 2016, at which time D.S. reported to the authorities that Jeffries had repeatedly sexually abused her over a nine-year period.

Ultimately, Jeffries was charged with kidnapping and raping D.S. when she was 12 and when she was 16.  During discovery in the case, both sides were permitted to review D.S.’s child abuse investigation records kept by the Cuyahoga County Department of Children and Family Services. The records showed that when D.S. was four or five, she had reported to that agency that she had been sexually assaulted by a foster brother.

Because defense counsel decided to question D.S. about her prior allegations of sex abuse, the trial court held an in-camera hearing pursuant to State v. Boggs. Defense counsel argued that the rape shield law and Boggs did not bar evidence of D.S.’s prior sexual assault because the sexual activity involved was nonconsensual. The defense contended that the purpose of the rape-shield law was to protect victims from being harassed about their consensual sexual history and therefore prior sexual assaults were outside the law’s protection. The defense claimed this evidence was needed in this case to establish D.S.’s knowledge of the system, and to rebut any inference that D.S.’s behavioral issues were the result of sexual abuse by Jeffries.

The trial court rejected the defense arguments, The court held that Ohio’s rape-shield law and Boggs address all sexual activity, not just consensual activity, and disallowed the evidence.

Ultimately, the jury found Jeffries guilty of all four offenses. He was sentenced to an aggregate prison term of 15 years to life and classified as a Tier III sex offender. Jeffries appealed.

The Eighth District Court of Appeals affirmed the trial court’s exclusion of prior sexual abuse evidence under the rape-shield law, finding Boggs authoritative that evidence of both consensual and nonconsensual sexual activity is barred from admission.

Read the oral argument preview of the case here and the analysis of the argument here.

Key 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 . . . .”)

R.C. 2907.01 Sex Offenses General Definitions

(A) Defines Sexual Conduct

(B) Defines Sexual Contact

State v. Gardner, 59 Ohio St.2d 14 (1979) (The goals of Ohio’s rape shield law are guarding the victim’s sexual privacy, encouraging the reporting of rapes, and excluding evidence that is unduly inflammatory and prejudicial.)

State v. Meadows, 28 Ohio St.3d 43 (1986) (A separate provision of R.C. 2907 prohibits distribution of materials depicting minors involved in “sexual activity,” including nonconsensual activity.)

Cleveland Elec. Illum. Co. v. City of Cleveland, 37 Ohio St.3d 50 (1988) (“In matters of construction, . . . it is the duty of this court to give effect to the words used, not to delete words used or to insert words not used.”)

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. Schaim, 65 Ohio St.3d 51 (1992) (The rape-shield law should be applied in determining whether a defendant’s other acts of sexual abuse are admissible.)

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’s Proposition of Law Accepted for Review

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.

Does the Court Adopt Jeffries’s Proposition of Law?

No. The Court expressly rejects it.

Merit Decision

Executive Summary

The term “sexual activity” as used in the rape-shield law includes both consensual and nonconsensual activity, and absent one of the listed statutory exceptions, neither is admissible into evidence.

Analysis

Ohio’s rape-shield law, which protects both the accuser and the accused from the admission of evidence of past sexual activity, is derived from the crimes of rape (R.C. 2907.02) and gross sexual imposition (R.C. 2907.05).

Definition of “Sexual Activity”

Sexual activity is defined as “sexual conduct or sexual contact or both.” Sexual conduct and sexual contact are further statutorily defined in R.C. 2907.01 and nothing in either definition reflects any terminology that would exclude nonconsensual sexual activity. The plain, unambiguous meaning of “sexual activity” contains no volitional element. This interpretation is consistent with the Court’s holding in Boggs. If an accusation is true, (which the trial court expressly found in this case) and the matter involves sexual activity, the rape shield law applies.

Court Rejects Jeffries’s Remaining Arguments

Jeffries argued the Court changed course from Boggs when it chose not to apply the rape-shield law to nonconsensual sexual activity in State v. Williams. Wrong. The Court never considered the admissibility of evidence under the rape-shield law because no one raised the issue in that case.

The Court also rejects Jeffries’s argument that applying the rape-shield law to an accuser’s nonconsensual sexual activity does nothing to promote the purpose behind the law. The Court finds the interests promoted by the rape shield law are preventing harassment of the victim, discouraging putting the victim on trial in rape cases, encouraging victims to report sexual assaults, and excluding evidence whose probative value, if any, is far outweighed by its prejudicial effect. Thus, the Court’s holding that nonconsensual sexual activity is included in the meaning of “sexual activity” in the rape shield law furthers the fundamental purpose of the law.

Jeffries also argued that the rule of lenity (ambiguous penal statutes should be strictly construed in the defendant’s favor), the rule that courts should construe statutes to preserve their constitutionality, and the absurd-results doctrine all require the law to be narrowly construed to exclude nonconsensual sexual activity.  The Court rejects the first as inapplicable, as this case deals with admissibility of evidence, not defining a crime or penalty, rejects the second as beyond the scope of Jeffries’s sole accepted proposition of law, and rejects the third as unavailing, finding nothing absurd about the legislature’s policy choice of excluding evidence of prior instances of both consensual and nonconsensual sexual activity.

Case Holding

The plain meaning of the term “sexual activity” as used in the rape-shield law includes both consensual and nonconsensual sexual activity and both are barred from being admitted into evidence under the rape-shield law unless one of the specific exceptions in the law apples.

Case Disposition

The judgment of the court of appeals is affirmed, which means the ruling by the trial court on this issue was also affirmed.

Trial Court Judge (Affirmed)

Cuyahoga County Common Pleas Court Judge Janet Burnside

Eighth District Panel (Affirmed)

Opinion Author: Judge Kathleen Ann Keough, joined by Judges Anita Laster Mays and Larry Jones, Sr.

Concluding Observations

Both student contributor Carson Miller and I both called this correctly for the state. As I wrote after argument,

“While Mr. Martin always argues passionately for his clients, I just didn’t find this one very convincing, especially his answer to Justice Fischer’s question about why this case wasn’t controlled by Boggs.”

I’m not sure why this unanimous opinion took more than a year to be decided when the outcome never seemed to be in doubt.