False accusations of sexual assault are (still) not covered by Rape Shield Law

 In re: GH (HSC October 10, 2022)

Background. The prosecution filed multiple petitions in the family court against the Minor, G.H., averring sexual assault in the first and third degrees. The prosecution also moved to preclude the defense from presenting evidence about complainant’s past sexual history. The defense did not file a memorandum in opposition and did not file notice of the intention to use evidence of prior sexual conduct pursuant to HRE Rule 412. At the hearing on the motion, the Minor represented that he would not offer evidence of past sexual conduct, but would present evidence that the complainant had made accusations of sexual abuse against others in the past.

 

At trial, the complainant testified that she was sexually assaulted when she was 9 years old. She testified that the Minor was a friend of their neighbor who came over to the house and slept over. One night, Minor assaulted her and said if she told anyone, something would happen to her. She eventually disclosed the incident to a hospital employee.

 

On cross-examination, Minor confronted the complainant about whether she accused her sister’s boyfriend of sexually assaulting her. The complainant denied it. Minor asked about other accusations she made against her father and her cousin. The prosecution objected and the family court sustained it. Minor argued he was trying to elicit evidence of false accusations. The family court opted to give Minor “some leeway” and the complainant denied making false accusations.

 

Minor attempted to adduce extrinsic evidence of the complainant’s false assault allegations by calling a relative and asking the relative about it. The prosecution objected and the family court sustained it. The family court ruled the testimony was covered by HRE Rule 412 and there was no notice pursuant to the rule. The family court concluded that the Minor violate the law and sent Minor to the Hawai'i Youth Correctional Facility until he turned 19. Minor appealed to the ICA. The ICA affirmed. Minor then petitioned for a writ of certiorari to the HSC.

 

The HSC still reviewed the untimely certiorari application. Eight months after the ICA issued its judgment on appeal, Minor petitioned for review by the HSC. A party has 30 days after issuance of the judgment on appeal or dismissal order to file an application for writ of certiorari. HRS § 602-59(a). A party can extend the deadline another 30 days when it is timely made. HRS § 602-59(c). That did not happen here.

 

The HSC has the power to review an untimely certiorari application “and proceed to review its merits when it is plain from the record that defense counsel failed to comply with the procedural requirements for filing the application.” State v. Uchima, 147 Hawai'i 64, 82, 464 P.3d 852, 870 (2020). That is because the Hawai'i Constitution “guarantees a defendant in a criminal case the right to the effective assistance of counsel on certiorari review in the same manner that it does during all other critical stages of the criminal proceedings.” Id. at 76, 464 P.3d at 864.

 

Counsel for Minor admitted in its untimely filing that it was untimely. Counsel therefore admitted to being ineffective. The right to effective assistance of counsel extends to family court proceedings and the adjudication of juveniles. In re Doe, 107 Hawai'i 12, 16, 108 P.3d 966, 970 (2005). The HSC, therefore, applied the ruling in Uchima here and granted judicial review on its merits.

 

Evidence that the complainant falsely accused others of sexual assault is not covered by HRE Rule 412. HRE Rule 412 is extensive and has a hefty notice requirement. It prohibits evidence of a complainant’s “past sexual behavior” in criminal cases where the defendant is charged with sexual assault.

 

“Past sexual behavior” is defined as “sexual behavior other than the sexual behavior with respect to which a sexual offense or sexual harassment is alleged.” HRE Rule 412(h). The word “behavior” pertains to past sexual conduct. State v. Kelekolio, 74 Haw. 479, 521 n. 19, 849 P.2d 58, 77 n. 19 (1993). Conduct means “a mode of action” or “something done.” Id. And so false allegations of sexual activity are not a form of “action” and “past sexual behavior.” Id. at 521, 849 P.2d at 77.

 

The issue arose in State v. West, 95 Hawai'i 452, 24 P.3d 648 (2001). There, the HSC formulated a test to determine when HRE Rule 412 comes into play for false accusations of sexual conduct:

 

[W]here a defendant seeks to admit allegedly false statements made by a complainant regarding an unrelated sexual assault, the trial court must make a preliminary determination based on a preponderance of the evidence that the statements are false. Correlatively, where the trial court is unable to determine by a preponderance of the evidence that the statement is false, the defendant has failed to meet [their] burden, and the evidence may be properly excluded.

 

Id. at 460, 24 P.3d at 656.

 

Clarifying West. The HSC re-examined West. Requiring trial courts to determine if the defendant can prove truth or falsity of an accusation prior to trial warranted it. Here is the new clarification:

 

If a defendant seeks to admit a complaining witness’s false allegations of sexual assault, then admissibility is not subject to HRE Rule 412 or West. Defendants seeking to admit such evidence must make it clear the evidence is being proffered for its falsity. We do not address the applicability of other rules of evidence, including HRE Rule 403 (2016). A court must also, however, consider the constitutional rights of the defendant[, that is, confrontation, cross-examination, and the right to present a complete defense.]

          When a defendant seeks to admit evidence of sexual assault allegations based on their truth or where truth or falsity is unclear, the admission of such evidence is subject to HRE Rule 412. However, we abrogate West’s requirement that the trial court make a preliminary determination based on a preponderance of the evidence that the statements are false before allowing admission.

 

And so the family court here erred in precluding the defense from presenting evidence of false accusations made by the complainant.

 

Even if HRE Rule 412 did apply the notice requirements get diluted because of the accused’s constitutional rights. The notice requirements in HRE Rule 412(c)(1) require disclosure of the proffered evidence at least fifteen days before trial. The HSC held that this notice requirement has been limited by State v. Pond, 118 Hawai'i 452, 193 P.3d 368 (2008), where the HSC noted that strict compliance with notice requirements must give way when they implicate constitutional rights. Id. at 464-465, 193 P.3d at 380-381. Here, the prosecution was not surprised by the evidence proffered by the Minor. In fact, it was the prosecution that brought it up with its own motions. The HSC, therefore, held that even if HRE Rule 412 did apply, the family court erred in excluding the evidence based solely on noncompliance with the notice requirements.