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National Crime Victim Law Institute


Violence Against Women Monthly Digest

NCVLI’s Violence Against Women Monthly Digest is a compilation of cases, trainings, and news items affecting victims of sexual assault, domestic violence, stalking, trafficking, and other crimes against women.  Sign up for the Digest here.


To better assist victims’ rights attorneys and advocates working with victims of domestic violence, sexual assault, stalking, dating violence, and other crimes against women, NCVLI publishes Bulletins that are intended to provide a critical analysis on important topics relating to violence against women.

NEWSecuring Restitution for Victims of the Viewing, Possession, and Distribution of Child Abuse Imagery

The viewing, possession, and distribution of child abuse images causes       tremendous harm to the victims of such images, perpetuating the original abuse and furthering the emotional and psychological damage done to the victim.  As one victim stated, “[T]he abuse and exploitation I suffer has ”¦ destroyed the normal childhood, teenage years, and early adulthood that [everyone] deserves.” Over the past several years, courts have evaluated whether to award restitution to victims of child abuse images whose images were viewed, possessed, or distributed by the defendant, as well as how much to award.  Although many courts are still determining how to calculate restitution in these cases, law and policy support awarding the full amount of losses victims of child abuse images incur as a result of the defendant’s actions.

To read the Bulletin online, click below.  To read a PDF version of the Bulletin, click here.

Allowing Adult Sexual Assault Victims to Testify at Trial via Live Video Technology

Access to justice should not require any victim to suffer needless additional trauma.  One option that should be available to adult sexual assault victims is the use of live closed circuit television or videoconference technology to allow them to testify at trial outside the physical presence of the defendant.  Case law and public policy support allowing adult sexual assault victims to testify via live video technology if the evidence establishes that testifying in defendant’s physical presence would cause the victims to suffer serious emotional distress or other trauma and testifying from another room would mitigate that trauma.

Protecting Victims’ Privacy Rights: The Use of Pseudonyms in Civil Law Suits

This paper discusses the propriety of victims using pseudonyms in civil litigation and the importance of victim privacy, while alerting the reader to potential arguments that may be raised when moving to proceed by pseudonym or anonymously in a civil suit. Although this paper relates to civil suits, much of this analysis is also applicable to criminal law.

Excluding evidence of specific sexual acts between the victim and defendant under rape shield

Just over 30 years ago, states began passing legislation designed to codify the simple truth that a victim who consented to sexual activities in the past is not more likely to have “consented” to the rape being prosecuted.  Today, the Federal Rules of Evidence and the rape shield laws of every state accept this truth as it relates to the victim’s prior consent to sexual activities with anyone other than the defendant.   Illogically, this simple truth is often abandoned when extended to prior sexual activities between the victim and the defendant.  Law and policy support excluding evidence of the victim’s sexual history with the defendant under existing rape shield legislation.

Refusing discovery requests of privileged materials pretrial in criminal cases

Although defendants routinely subpoena third parties to turn over documents pretrial, the general rule is that there is no constitutional right to pretrial discovery.  Further, constitutional protections afforded to victims under some states’ victims’ rights laws bar pretrial discovery.  Despite this general rule, many states have created processes by which defendants receive documents from third parties - including victims’ privileged documents - pretrial.  Requiring the victim to turn over privileged material - material like notes from therapy sessions and rape crisis counseling records - undermines victims’ privacy rights and may even prevent victims from seeking help at all.  This paper sets forth the standards courts often use in determining whether a victim must be required to turn over privileged material. It also arms the practitioner with arguments for why a victim should never be required to turn over such material pretrial.

Case Summaries

Below are case summaries of judicial opinions related to violence against women issues that have been featured in NCVLI’s Violence Against Women Biweekly Digest in 2011.  NAVRA, NCVLI’s membership organization, has hundreds more of these  summaries, searchable by topic, jurisdiction, and year, available to its membership at

State v. Ryan, 239 P.3d 1016 (Or. App. Ct.  Sept. 22, 2010).

Defendant was convicted on two counts of violating a stalking protective order (SPO) by sending letters to the victim’s father.  The letters reflected defendant’s delusional belief that he had a relationship with the victim and contained numerous incomprehensible statements, but no overt threats.  On appeal, defendant argued that the communications, although in violation of the valid SPO, were protected under the free speech protections found in Article I, section 8 of Oregon’s Constitution.   The appellate court agreed.  It found that prior Oregon case law regarding the crime of stalking generally also applied to the crime of violating SPOs.  That prior case law required that, in order to withstand challenge under Article I, section 8, speech-based contact can be punishable as an element of stalking only if it constitutes a threat - although no threat requirement exists on the face of the stalking statutes.  It defined a “threat” as one that “instills in the addressee a fear of imminent and serious personal violence from the speaker, is unequivocal, and is objectively likely to be followed by unlawful acts.”  The court found that the state failed to prove that the two letters sent by defendant met this standard, and that therefore the trial court erred in denying defendant’s motion for a judgment of acquittal.  The conviction was reversed.

Commonwealth v. Ruggiano, No. 1991 EDA 2009, —-A.3d—-, 2010 WL 5064839 (Pa. Super. Ct. Dec. 13, 2010).

Defendant was convicted of indecent assault of and indecent exposure to two minor brothers. Prior to trial, defendant sought to introduce evidence that one of the victims had been adjudicated in juvenile court of committing a sexual assault on another family member, and that another brother had also been adjudicated in juvenile court of sexually assaulting other siblings. Defendant argued the evidence was relevant to show there was an “atmosphere of promiscuity” in the victims’ home, and this was relevant to show a motive fabricate claims of sexual assault against him because of the victims’ desire to protect their siblings or deflect attention away from themselves. The trial court denied the motion under Pennsylvania’s rape shield statute. On appeal, the superior court found that the rape shield law did not apply because the evidence “does not relate to the complainants’ chastity or morality, but to their credibility, in particular, the victims’ motive to fabricate charges of sexual assault.” Further, the court found that the rape shield statute could not be used to exclude relevant evidence. The evidence here was relevant to show bias or motive to fabricate. Finally, the rape shield law would only bar admission of the evidence if the probative value was outweighed by its prejudicial effect. The court found the probative value to be great, and that the court’s exclusion of it compromised the truth-determining process and defendant’s right to confront and cross-examine the witnesses against him. The court also found the risk of prejudice was not great because the evidence would not have focused on the victims’ reputation for chastity. Accordingly, the court reversed and remanded for a new trial.

Tidwell v. State, 701 S.E.2d 920 (Ga. App. Ct. 2010).

Defendant was convicted of child molestation and aggravated child molestation of two girls. Defendant asserted numerous charges of error, two of which are discussed here. First, he argued that the trial court erred in not granting him access to confidential files from the Department of Family and Children Services. Upon defendant’s motion, the trial court reviewed the files in camera and announced that the files were not relevant and contained no exculpatory evidence. The court found the trial court’s finding to be sufficient. It further held that a defendant who challenges a trial court’s in camera inspection on appeal must show what information was suppressed and how it is materially exculpatory. Defendant made no such showing. Accordingly, the court found no error on this count. Second, defendant argued that the trial court erred in denying his motion to admit evidence that the 15-year-old had been having sex with her boyfriend on two grounds: (1) to impeach the victim, because the victim stated to a forensic interviewer that she had not had sex with anyone other than defendant; and (2) to show that someone other than defendant had caused the penetration injuries to the victim’s hymen. The court found no error for excluding on impeachment grounds because the victim’s inconsistent statement to the forensic interviewer was not introduced at trial. However, the court found that the trial court did err in excluding the “alternate source of injury” evidence under the Rape Shield statute. Under Georgia’s rape shield law, evidence of prior sexual conduct can be admitted if it goes not to consent but rather “to show that someone other than the defendant caused the injuries to the child.” The court found that the state, by entering evidence of penetration damage to the victim’s hymen, opened the door for defendant to argue the penetration damage was caused by another source. Accordingly, defendant’s conviction was reversed, as it found the improperly excluded evidence tainted the entire trial.

State v. Berriozabal, 243 P.3d 352 (Kan. 2010).

Defendant was convicted of rape, attempted rape, and aggravated criminal sodomy against a minor.  He appealed his conviction on several grounds, including that the trial court erred in denying his motion for a psychological examination of the victim; in excluding evidence that the victim had been sexually abused by a relative; and by imposing an unduly lengthy sentence that amounted to cruel and unusual punishment.  The Court ruled first that it was not error to deny the motion for a psychological exam.  Defendant argued a psychological examination was necessary because the victim: (1) had an unstable home life, which was likely to have an adverse effect on the mental stability of the victim; (2) had spread a rumor about a relative that was not true; and (3) had possibly been sexually abused by another relative.  The court found that there was insufficient evidence to support any of these claims, and that the victim’s testimony was consistent and showed no evidence of mental instability or lack of veracity.   The Court next ruled that the trial court did not err in excluding evidence that the victim had been sexually abused by a relative.  Defendant sought to introduce this evidence to show that another individual could have been the source of a tear found on the victim’s vagina.  The Court found, however, that although such evidence would be relevant, there was insufficient evidence to prove that the victim had in fact been molested previously.  However, as to defendant’s claim that his sentence constituted cruel and unusual punishment under the state and federal Constitutions, the Court remanded for additional findings.  In determining whether a sentence is cruel and unusual, factual inquiries must be made which were not made below.  Because appellate courts cannot make findings of fact, the court remanded to the district court for adequate findings of fact and conclusions of law.  

Mayo v. Commonwealth, 322 S.W. 3d 41 (Ky. 2010).

Defendant forced his estranged wife to have oral and vaginal sex with him upon threat of anal sex if she did not comply. Defendant was convicted of first degree rape, among other charges. Defendant appealed on a number of grounds, including that the trial court erred in excluding evidence that the victim and defendant had engaged in consensual anal sex in the past. First, he argued Kentucky’s rape shield statute does not apply to relationships between a husband and a wife. Second, he argued this evidence falls under an exception to rape shield because it involved sex between the victim and the accused and went to consent, in that it would tend to show that the threat of anal sex was not really a threat since they had engaged in this behavior together before. The court first found that Kentucky’s rape shield statute does apply to inter-spousal sexual relations. Second, the court found that the trial court’s analysis did not rest on the rape shield statute, but instead on Kentucky rule of evidence 403, which permits exclusion of otherwise relevant evidence if the probative value of that evidence is substantially outweighed by the danger of undue prejudice. The court found that the probative value was low-even assuming that the victim and defendant had engaged in anal sex before, that does not mean that she consented to have sex with defendant on the date in question. On the other hand, evidence that the victim and defendant had engaged in anal sex in the past would have the potential to embarrass the victim and unduly prejudice the jury. Accordingly, the court found that the trial court did not abuse its discretion in excluding this evidence.

State v. Wheeler, 790 N.W.2d 542 (Wis. Ct. App. 2010).

Defendant was convicted of two counts of repeated sexual assault of his minor step-daughter over the course of many years.  Defendant appealed his conviction, arguing that the trial court erred by denying his motion to admit evidence that: (1) the victim had, at age eleven, made an “unsubstantiated” accusation of sexual assault against her cousin; and (2) the victim did not report that defendant was abusing her when she made this accusation.  Defendant sought to admit this evidence under an exception to the rape shield statute, which allows for the admission of evidence of prior untruthful allegations of sexual assault made by the victim.  The Court found that the trial court did not err in excluding this evidence.  The Court noted that an “unsubstantiated” report does not mean that the report is untruthful and defendant offered insufficient evidence to show that the report was untruthful.  The Court was not persuaded that the victim’s failure to contemporaneously accuse defendant showed that the allegations were false, noting that victims commonly delay reporting such assaults, especially where the perpetrator is a family member and authority figure.  The Court also found that the victim’s recantation of the allegations against defendant did not support a conclusion that she had lied about the assault by her cousin, noting that child complainants commonly attempt to recant allegations.  The Court also noted that the trial court reasonably determined that evidence that a sexual assault complainant made a prior untruthful allegation of sexual assault against someone other than the defendant in an unrelated situation is collateral to the resolution of the charged crimes and more inflammatory and prejudicial than probative.  Accordingly, the judgment was affirmed.    

People v. Dejourney, —-Cal. Rptr. 3d—-, 192 Cal. App. 4th 1091 (Cal. App. Ct. 2011).

Defendant was convicted of forcible rape and kidnapping.  His victim had cerebral palsy and was a developmentally delayed adult.   Prior to the rape, defendant and the victim walked around together and rode the trolley together but she did not seek help.  The state was permitted to introduce evidence from an expert witness who testified, in the form of hypotheticals involving similarly-situated individuals, that developmentally delayed victims may be more likely to acquiesce to perceived authority figures, may not have learned self-protective skills, and may be less likely to seek help from nearby individuals.  The expert did not opine on whether the victim consented.  Defendant appealed on several grounds, including that the court erroneously permitted the state to admit expert testimony about behavior patterns that are common with individuals who are developmentally delayed and then subjected to a violent sex act, stating that allowing such evidence violated his due process rights to a fair trial.  Specifically, he argued that the testimony was not sufficiently beyond common experience to be admitted as expert testimony.  The court disagreed, finding the trial court did not abuse its discretion in allowing the expert to testify.  The court found that the reactions of a developmentally disabled person to sexual advances are beyond the range of the general knowledge of jurors, and could be helpful in evaluating the victim’s testimony.  Accordingly, in this respect, the judgment was affirmed.

See more case summaries at