Div.: R ORDER RE: Defense Motion to Strike Rape Shield Statute as Facially Unconstitutional

Transcription

1 DISTRICT COURT EAGLE COUNTY, COLORADO 885 E. Chambers Road P.O. Box 597 Eagle, Colorado Plaintiff: PEOPLE OF THE STATE OF COLORADO. Defendant: KOBE BEAN BRYANT. σcourt USE ONLYσ Case Number: 03 CR 204 Div.: R ORDER RE: Defense Motion to Strike Rape Shield Statute as Facially Unconstitutional This matter comes before the Court on the Defense Motion to Strike Colorado s Rape Shield statute, C.R.S , as facially unconstitutional. The Court has reviewed the motion, the Prosecution s Response and the Defense Reply. Further, the Court heard oral argument on this matter on May 11, The Defense urges this Court to strike C.R.S on the grounds that it is facially unconstitutional when read in conjunction with C.R.S They further claim it violates a sexual assault defendant s rights to confrontation, compulsory process, due process and equal protection under the Sixth and Fourteenth Amendments to the United States Constitution and Article II, Sections 16 and 25 of the Colorado Constitution. C.R.S (Rape Shield) provides that, with certain exceptions, evidence of specific instances of an alleged sexual assault victim s sexual conduct shall be presumed irrelevant. C.R.S (1). C.R.S (Sexual Assault/Other Act) provides that in prosecutions of unlawful sexual behavior charges, evidence of other (uncharged) sexual acts (by the defendant) is typically relevant and highly probative, and it is expected that normally the probative value of such evidence will outweigh any danger of unfair prejudice, even when incidents are remote from one another in time. C.R.S (1).

2 The Prosecution argues that both the Rape Shield statute and the sexual assault/other acts statute were adopted by the Colorado legislature as valid legislative determinations of evidentiary considerations in criminal trials of unlawful sexual behavior cases. The Prosecution cites People v. McKenna, 585 P.2d 275 (Colo. 1978) as controlling here, since in that case the Colorado Supreme Court upheld the Rape Shield statute as a valid legislative enactment. In reaching this conclusion, the McKenna court stated in relevant part as follows: Thus, rather than completely denying the defendant s rights in order to protect the victim s privacy interest, the statute strikes a balance by conditioning admission of evidence of the victim s sexual history on the defendant s preliminary showing that it is relevant. It involves no denial of the defendant s right to confront his accuser for there is no constitutional right to introduce irrelevant and highly inflammatory evidence. McKenna, 585 P.2d at 279; see also Michigan v. Lucas, 500 U.S. 145, (1991) (upholding the Michigan rape shield statute because it represents a valid legislative determination that rape victims deserved heightened protection against surprise, harassment, and the unnecessary invasions of privacy ). The prosecution s argument is that in unlawful sexual behavior cases, although different statutory standards are applied as to whether sexual conduct of the alleged victim and of the defendant is relevant, there is a rational basis for such distinction. They also claim there are procedural protections for the defendant under both statutes, and that the Defense here cannot complain about the unfair application of two differing standards for admission of evidence since the prosecution is not attempting to invoke the provisions of the sexual assault/other acts statute in this case. In People v. Gholston, the Colorado Court of Appeals noted that the purpose of the Rape Shield statute was to protect victims of sexual assaults from being subjected to psychological or emotional abuse in court as the price of their cooperation in prosecuting sex offenders. People v. Gholston, 26 P.3d 1 (Colo. App. 2000) (quoting People v. McKenna, 196 Colo. 367, 372, 585 P.2d 275, 278 (1978)). Statutes are presumed to be constitutional, and the party challenging the statute s validity has the burden of proving unconstitutionality beyond a reasonable doubt. People v. Janousek, 871 P.2d 1189 (Colo. 1994); People v. Rosburg, 805 P.2d 432 (Colo. 1991). Further, in urging this Court to declare the Rape Shield statute facially unconstitutional, the defense must meet another higher standard that under no conceivable set of factual circumstances could Colorado s Rape Shield and sexual assault/other act statutes be found constitutionally valid. U.S v. Salerno, 481 U.S. 739 (1987); People v. Juvenile Court, 893 P.2d 81, 93 (Colo. 1995). This Court notes that while the argument of the defense is persuasive that in some instances the application of both the Rape Shield statute and the sexual assault/other acts statute might be constitutionally impermissible to certain unlawful sexual behavior defendants, such situation does not present itself in this case. The fact that the application of these two statutes might, in certain unlawful sexual behavior cases, be unconstitutional does not render the Rape Shield statute wholly unconstitutional. Both the Defense and the Prosecution have represented to the Court that there will be no application of the sexual assault/other acts statute in this case. A 2

3 criminal defendant lacks standing to make such an equal protection challenge based on a hypothetical assertion that disparities may occur. People v. Becker, 55 P.3d 246 (Colo. App. 2001) The Defense has sought and received a full evidentiary hearing(s) on the sexual conduct of the alleged victim in this case under the Rape Shield statute. This Court will ultimately determine the relevancy of such evidence to the charges brought in this case. Therefore, this case presents a factual situation wherein the Rape Shield statute can be applied to the Defendant in a constitutionally permissible manner. Since the sexual assault/other acts statute is of no consequence in this case, this Court need not reach the issue of whether the legislative scheme of differing standards concerning the relevance of sexual conduct evidence of the alleged victim and the sexual assault defendant violates the state and federal guarantees of equal protection of the law. Where a statute is capable of both a constitutional and unconstitutional interpretation, then the constitutional interpretation must be adopted. People v. Randall, 711 P.2d 689, 692 (Colo. 1985) The Defense then argues that, even without reference to C.R.S , the application of the Rape Shield statute is fundamentally unfair and violates due process and equal protection. The Defense suggests that this is an issue of first impression. This Court concludes, however, that McKenna and its progeny state clearly that the Rape Shield statute does not deny an unlawful sexual assault criminal defendant due process under the law. The statute permits a defendant to make a showing at a hearing that presumptively irrelevant information about the alleged victim is relevant and admissible at trial. After all, a defendant has no right to have otherwise irrelevant information admitted at trial. Here, there is no fundamental liberty interest impinged upon by the Rape Shield statute, and, even if there were, the statute is narrowly drawn and furthers a compelling state interest. See McKenna, supra. The equal protection guarantees of the Fourteenth Amendment to the U.S. Constitution and of the Colorado Constitution require like treatment of persons who are similarly situated. People v. Young, 859 P. 814 (Colo. 1993). The threshold question in any equal protection challenge is whether the persons allegedly subject to disparate treatment are in fact similarly situated. An equal protection challenge must fail if persons alleging disparate treatment are not similarly situated. People v. Black, 915 P.2d 1257 (Colo. 1996). Equal protection of the laws is denied when two or more statutes provide different punishments for identical criminal conduct. E.g., People v. Czajkowski, 568 P.2d 23 (Colo. 1977); People v. Hulse, 557 P.2d 1205 (Colo. 1976); People v. Calvaresi, 534 P.2d 316 (Colo. 1975). However, it is only where the same criminal conduct is proscribed in both statutes that the equal protection principle becomes applicable. People v. Hulse, supra. Since the Rape Shield statute treats similarly situated individuals in a similar fashion, i.e. sexual assault criminal defendants, equal protection of the laws is afforded this group of criminal defendants. Moreover, there is a rational basis for the statute, and the statute is rationally related to a legitimate state objective. See McKenna, supra. The general rule is that legislation is presumed valid and should be sustained if the classification drawn by the statute is rationally related to such a legitimate state interest. Evans v. Romer, 854 P.2d 1270 (Colo. 1993). The Defense here has failed to 3

4 meet its burden of proving the statute unconstitutional beyond a reasonable doubt under the state and federal constitutions as a denial of equal protection. Parrish v. Lamm, 758 P.2d 1356 (Colo. 1988). Finally, the defense then urges the Court to review McKenna s progeny and determine that the standards for admissibility of victim sexual conduct evidence in those cases are such inconsistent standards as to violate criminal defendants fundamental rights to due process, by impacting the presumption of innocence and reducing the prosecution s burden to prove a criminal defendant guilty beyond a reasonable doubt. Compare, for example, People v. Johnson, 671 P.2d 1017, 1020 (Colo. App. 1983) with People v. Braley, 879 P.2d 410, 416 (Colo. App 1993). This Court must be guided by the long line of Colorado cases since McKenna upholding the legislature s direction concerning the admissibility of the sexual conduct of persons who assert unlawful sexual behavior against him or her by a criminal defendant. The Court must also defer to the judgment of the appellate courts where specific evidence was ruled upon and confirmed as either admissible or inadmissible under the facts presented in those individual cases. Those cases do not support the defense contention that in this case, under the specific facts alleged herein, the Rape Shield statute cannot be applied in a constitutional fashion, affording the defendant his right to both due process and equal protection under the laws. Wherefore, this Court DENIES the Defense Motion to Strike the Rape Shield Statute as Facially Unconstitutional. DATED: June 10,

5 CERTIFICATE OF MAILING I hereby certify that I have, on this day of, 2004, faxed a true and correct copy of the above ORDER to: Mark Hurlbert District Attorney Fifth Judicial District P.O. Box 726 P.O. Box 295 Edwards, CO Terrence P. O Connor, Esq. Heckman & O Connor, P.C. Eagle, Colorado Fax: Fax: Counsel for Defendant Ingrid Bakke, Esq. John Clune, Esq. Boulder County District Attorney s Office Wheeler & Clune, LLC P.O. Box 471 Alpine Bank Building, Suite 101 Boulder, CO Avon, CO Fax: Fax: Counsel for Jane Doe Pamela Robillard Mackey, Esq. Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, PC 150 East Tenth Avenue Denver, Colorado Fax: Counsel for Defendant 5