Gagne v. Booker, — F.3d —, No. 07-1970, 2012 WL 1700291 (6th Cir. May 16, 2012).

Defendant and co-defendant were convicted of criminal sexual misconduct for forcibly and simultaneously engaging in sexual activities with defendant’s ex-girlfriend.  Defendant filed a petition for habeas corpus, arguing that evidence was improperly excluded under Michigan’s rape shield laws.  Specifically, defendant argued that the trial court’s exclusion of evidence that the victim had previously engaged in group sex with defendant and a third party, and that the victim had solicited defendant’s father to engage in group sex with her and defendant, violated his constitutional right to be given a meaningful opportunity to present a complete defense.  The court granted defendant’s habeas petition, despite noting that “evidentiary rules generally disfavor showing a person’s propensity for certain actions by introducing evidence of past similar acts,” and that, in rape cases, “evidence regarding ‘unrelated sexual activity’ is generally accepted as only minimally relevant to the question of consent.”  Upon en banc rehearing, a divided majority of the court vacated the earlier panel opinion and denied defendant’s petition.  In its plurality opinion, the court held that because defendant could not establish that the state appellate court’s decision affirming the trial court’s exclusion of the proffered evidence was objectively unreasonable, his petition must fail.  The court explained that: “Considering the general antipathy for propensity evidence, the State’s established interest in rape-shield laws, and the Michigan Supreme Court’s repeated rejection of this argument [that the state rape-shield law violates the Constitution when it is applied to exclude evidence central to an accused’s defense], we cannot say that the decision in this case was ‘beyond any possibility for fair-minded disagreement.’”  The case generated five concurring opinions, and two dissenting opinions.  One of the concurrences elaborated on the idea that defendant was wrongly attempting to use the excluded testimony to show the victim’s propensity to engage in group sex rather than to show her consent to have sex with him and the co-defendant.  That opinion also commented favorably upon additional arguments made by the other concurring judges, including that:  (1) the excluded evidence was not particularly probative once stripped of the “forbidden” propensity inference; (2) the state’s interests in its rape-shield laws remain strong even after a trial judge admits some evidence of the victim’s past sexual practices; and (3) the strength of the state’s interest in excluding the evidence in this case distinguishes it from the Supreme Court’s cases on the right to present a defense.

NCVLI participated in this proceeding as amicus curiae, along with co-amici Justice League of Ohio, arguing that defendant’s proffered evidence was rightly excluded as it was propensity evidence bearing little probative value, but with great potential to inflame the jury and harass and embarrass the victim.