Doe v. Superior Court, No. S272166 (Cal. Jul. 27, 2023)
Evidence Code § 1106(a) generally prohibits the admission of evidence of the plaintiff’s sexual conduct to prove consent or absence of injury to the plaintiff in a sexual harassment, sexual assault or sexual battery case. But § 1106(e) says that it does not render inadmissible evidence used to attack the credibility of the plaintiff under § 783. And § 783 says that, after following a specified procedure, the court can admit evidence of the plaintiff’s sexual conduct if it is relevant under § 780—the general rule regarding witness credibility—and not rendered inadmissible under the probative-value-versus-prejudice balancing test in § 352.
The facts in this case are pretty awful. Plaintiff claims she was molested by her fourth grade teacher. To rebut causation on her emotional distress damages, the School intended to offer evidence that Plaintiff was also molested by a “family friend” several years later, and this subsequent act was the cause of some or all of her injuries and damages. Plaintiff moved in limine to keep the evidence out under §§ 1106 and 352. The trial court ultimately found the evidence admissible because it believed that § 1106—which it repeatedly misidentified by its criminal analogue, § 1103—applied only to voluntary sexual conduct.
Plaintiff took an immediate writ. The Court of Appeal initially stayed the case, but soon thereafter summarily denied the writ and dissolved the stay. The parties proceeded to opening statements, which mentioned the later incident. The Supreme Court, however, quickly granted review, issued a stay of its own, and transferred the case back to the Court of Appeal. The Court of Appeal, in a published opinion, found that the trial court erred in finding that § 1106 didn’t apply to involuntary sexual abuse. But it nonetheless found that the incident was admissible for impeachment only, based on its anticipation that Plaintiff would testify that the teacher's molestation was the sole cause of her emotional distress. It further found that the trial court had, more or less, followed the procedural requirements of § 783 and didn't abuse its discretion in failing to exclude the evidence under § 352. The Supreme Court granted review again.
Chief Justice Guerreo’s unanimous opinion for the court canvasses the somewhat ugly history regarding the admissibility of evidence of a victim’s “unchasteness” to purportedly show her consent in rape cases. It wasn't until the early '80s that California got rid of a requirement of physical resistance to establish rape and began to bar the use of victim’s sexual history in criminal rape cases to show consent. Then these limitations were expanded to civil cases in 1985.
As the Court explains, § 1106(a) prohibits the admission of the plaintiff's sexual conduct—voluntary or not—as substantive evidence to prove consent or absence of injury. But § 1106(e) essentially permits, subject to the procedures in § 783 and balancing under § 352, the use of the same evidence to attack the plaintiff’s credibility. The Court recognizes that there is some “tension” between those two points. That, according to the Court highlights the importance of the § 783 procedures and § 352 balancing.
The Court thus parts ways with the Court of Appeal’s finding that the trial court substantially complied with § 783, which requires defendant to make a sworn offer of proof, plaintiff to be questioned out of the presence of a jury regarding the validity of the offer of proof, and an order by the court specifically delineating what questions, if any, should be allowed. In particular, the Court notes that an examination of Plaintiff might show whether she plans to testify that that 100% of her emotional distress was attributable to the teacher. That would have allowed the trial court to specifically define what was admissible in advance.
The Court further declines to affirm the Court of Appeal’s holding that the evidence was admissible under § 352. In particular, the the trial court's failure to follow the § 783 procedures resulted in an inadequate record to fairly make that determination. The Court explains, however, that in the context of sexual conduct evidence in sexual abuse cases, § 352 balancing takes on a particular significance.
In most cases the “prejudice” to be avoided under the statute is the risk that a jury will draw unjustified conclusions from inflammatory or emotionally fraught evidence. But here, the prejudice is also to the Plaintiff, who can be made to suffer unwarranted intrusion into her private life. The balancing must account for the plaintiff’s right to privacy and freedom from harassment. Thus, as established in cases applying the analogous criminal provisions, “courts should use their discretion to sparingly and narrowly use their discretion to admit such evidence.” Accounting for the policy behind § 1006(a) requires a broader § “352 inquiry compared with the garden-variety weighing contemplated under that statute in isolation.”
That didn’t happen here, so it will need to happen on remand. The court finally notes that “if the previously empaneled jury remains constituted (as we were informed at oral argument it does*), the trial court will be expected to proceed as appropriate in that regard.”
Court of Appeal reversed.
*From all indications from dates in the opinion, it looks like about two years have passed since the opening statements discussed in the opinion. That's a long break for a jury.
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