The state’s rape-shield law should prevent an accused rapist from telling jurors about the reported victim’s past sexual conduct, the Arkansas Supreme Court ruled Thursday.
The 32-year-old defendant, Bernard Kindall, is accused of sexually assaulting his cousin, K.J., in 2008, when she was less than 14 years old.
At trial, Kindall wanted to introduce evidence that K.J. had previously accused another cousin, D.R., of sexually abusing her in 2006 when she was 9 or 10 years old.
Pulaski County Circuit Judge Leon Johnson said a jury should be able to hear about K.J.’s previous abuse allegations. But Thursday, the Supreme Court reversed Johnson’s ruling in a 6-1 opinion, saying testimony about the 2006 allegations would be “inflammatory” and “prejudicial.”
Chief Justice Jim Hannah dissented.
The court sent the case back to Johnson for a trial.
Kindall was charged with second-degree sexual assault of K.J. on or about Dec. 9, 2008.
During a Dec. 7, 2010, hearing, K.J. testified that D.R. had engaged in sexual intercourse with her and that, although the allegation was true, she initially told her mother that the incident had not occurred because she feared “what the consequences might be” and that she would “get in trouble” with her mother if her mother “didn’t believe that I didn’t want to do it.” But K.J. also testified that she later told her mother that the incident had occurred.
K.J. testified that while she spoke to the police, neither her nor any member of her family attended D.R.’s juvenile hearing on the incident. She explained that she was never contacted about appearing in court when she was 12 years old .
D.R. testified in the 2010 hearing that he was 19 years old and K.J. accused him of rape in 2006, and he denied the allegation. He said he was present when K.J. told her mother that the incident did not occur. He said the case “got thrown out.”
Johnson, the circuit judge, granted Kindall’s motion to admit the evidence “on the issue of credibility, especially in a case where much depends on the veracity of the victim in stating what occurred in a situation.”
In a ruling signed by Justice Josephine Linker Hart, the state Supreme Court said evidence of a victim’s prior sexual conduct is not admissible by the defendant to attack the credibility of the victim under the state’s rape-shield law.
The law specifically precludes the admissibility of evidence of a victim’s prior allegation of sexual conduct if the reported victim asserts the allegation is true, the court said. In this instance, K.J. asserted that that the prior allegation of sexual conduct with D.R. is true, so the rape-shield law would preclude the admissibility of the evidence surrounding the allegation to attack K.J.’s credibility, according to the court.
The law provides, however, that the circuit court may admit evidence of the victim’s prior sexual conduct with any other person if, following a hearing, “the court determines that the offered proof is relevant to a fact in issue, and that its probative value outweighs its inflammatory or prejudicial nature.”
Northwest Arkansas, Pages 10 on 06/22/2013