Sixth Circuit Rules in Michigan Rape Shield Case

The Sixth Circuit Court of Appeals reversed a federal habeas grant in a controversial rape shield law appeal on Wednesday. The Cincinnati-based court issued eight opinions in the matter, with the plurality concluding that Michigan state courts did not unreasonably restrict testimony regarding an alleged rape victim's sexual history.

In July 2000, Lewis Gagne and Donald Swathwood went to the home of Gagne's ex-girlfriend, P.C. After a day of considerable smoking and drinking, P.C. and Gagne had sex, which both agree was consensual. They disagree about how long it remained consensual.

At trial, Gagne was allowed to introduce evidence that he and P.C. had previously used sex toys and engaged in group sex with Swathwood, but the trial court excluded evidence of two other group sex encounters under the Michigan rape shield law. (The law allows for the admission of evidence of a victim's past sexual conduct with the defendant to the extent it is relevant and not unfairly prejudicial.)

The jury convicted Swathwood on all counts and Gagne on two counts.

After conviction, the defendants argued to the Michigan Court of Appeals that the trial court's exclusion of some of the group sex evidence violated their Sixth Amendment rights to a fair trial, to confront their accuser, and to present a complete defense. The Michigan Court of Appeals rejected this claim and affirmed the convictions.

A federal district court, however, granted habeas in the case, and a Sixth Circuit Court of Appeals three-judge panel affirmed the grant.

After en banc rehearing, the Sixth Circuit Court of Appeals held that the lower federal courts got the case wrong. The issue, according to the appellate court, was not whether the excluded evidence could have been admissible, but whether the Michigan Court of Appeals decision was "objectively unreasonable."

The appellate court concluded, "One might disagree with the reasons given by the Michigan Court of Appeals ... but these are nonetheless legitimate reasons, and certainly not 'so lacking in justification' as to be 'beyond any possibility for fair-minded disagreement' in light of the general antipathy for propensity evidence and the state's established interest in rape-shield laws."

While the case is being trumpeted as a victory for rape shield laws, it also highlights the fact that victims continue to be put on trial in rape cases.

Related Resources:

• Gagne v. Booker (Sixth Circuit Court of Appeals)
• Rape Shield Laws: Character and Reputation Evidence (FindLaw's Sixth Circuit Blog)
• Why Did Kobe Bryant's Accuser Stop Cooperating with Prosecutors? (FindLaw)