concluding that because the “state introduced [evidence showing that the victim was not a virgin] with the hope that the jury would infer [that defendant] caused the hymenal condition,” it was constitutional error for state court to apply the state’s rape shield statute to preclude testimony that indicated that the victim’s father had molested victim several years before the charged crimes
How later courts described this case
- concluding that because the “state introduced [evidence showing that the victim was not a virgin] with the hope that the jury would infer [that defendant] caused the hymenal condition,” it was constitutional error for state court to apply the state’s rape shield statute to preclude testimony that indicated that the victim’s father had molested victim several years before the charged crimes
- concluding that because the prosecution introduced evidence showing that 11-year-old victim was not a virgin, with hope that the jury would infer that the defendant caused the hymenal condition, it was constitutional error for the court to apply the rape-shield law to preclude testimony that the victim's father had molested the victim several times before the charged crimes
- recognizing the potential embarrassment of public knowledge of a previous molestation and that the elimination of the risk of embarrassment furthers the state’s interest in encouraging children to report cases of, molestation so that the perpetrators can be prosecuted
- finding constitutional error when the prosecution presented evidence of hymenal injury and the trial court precluded the defendant from showing that the complainant’s father had molested her several times prior to the alleged assault involving the defendant
Written by the judges who cited it.
The opinion
CUDAHY, Circuit Judge,
concurring.
I agree with the majority that the exclusion of the testimony suggesting prior hyme-nal damage in this case violated the petitioner’s Sixth Amendment right to cross-examine witnesses effectively but that this constitutional error was nonetheless harmless. I write separately, however, in order to emphasize my belief that, but for the evidence of A.T.’s venereal disease, the petitioner would clearly have satisfied his burden of showing that the error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, - U.S. -, -, 113 S.Ct. 1710, 1722 , 123 L.Ed.2d 353 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 , 66 S.Ct. 1239, 1253 , 90 L.Ed. 1557 (1946)). As the majority opinion correctly finds, “[i]n the absence of any testimony of prior sexual experience, the jury would likely presume that hymenal damage to an eleven-year-old girl was the result of the alleged molestation.” Ante at 1138. Thus, the other evidence on which the majority relies in concluding that the error was harmless — the detailed testimony of the victim, the consistency with which the victim related her stories to others and A.T.’s mother’s testimony placing A.T. at Tague’s home on the weekend of one of the alleged incidents — would alone not be enough to overcome the error’s prejudicial influence on the jury. Dr. Hibbard’s testimony regarding A.T.’s venereal disease, however, establishes that, even if the cross-examination had not been unconstitutionally circumscribed, the jury would still have been able to corroborate the victim’s allegations with physical evidence. Because of this evidence, and this evidence alone, I concur that the constitutional error was harmless.