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‘Rough Sex’ Statement Was Impeachment Evidence

The Court of Appeals reverses defendant’s convictions for strangulation, rape and sodomy; the trial court improperly prevented defendant from using evidence that his former girlfriend had consented to the activities for impeachment pur­poses, and the error in excluding the evi­dence was not harmless.

The commonwealth and defendant presented conflicting expert testimony regarding whether the physical evidence proved that the encounter was forcible. The sexual assault nurse examiner who examined the woman opined that the abrasions and bruises on her neck, which were consistent with two fingers and a thumb, were significant because only 10 to 20 percent of strangulation victims show any sign of external injury. The nurse testified she did not detect any vis­ible genital injuries despite a thorough exam but that both her experience and the medical literature indicate that only 10 to 50 percent of adult patients who re­port being sexually assaulted have such injuries.

Defendant presented testimony from a medical doctor, who had 40 years’ experi­ence in the field of obstetrics, gynecology and emergency medicine. He questioned the conclusions drawn by the sexual as­sault nurse, opining that if the events occurred as the woman reported them, she should have sustained injuries to her heard, mouth, legs and genitals. Defen­dant testified in his own behalf and said that during his relationship with the woman, she encouraged him to be ag­gressive and engage in “rough sex” and “choke play.”

Proffered evidence

The evidence defendant contends should have been admitted comprises both the woman’s alleged statement to another witness at a backyard barbecue that she enjoyed past incidents of rough sex with defendant and her assertion that she hoped to engage in rough sex with him later on the night she made the statement, which occurred several weeks prior to the events up which defendant’s convictions are based.

The woman’s statement that she hoped to have aggressive sex with defendant later that evening was not sexual conduct and did not occur between the complain­ing witness and the accused. Instead, the sexual activity was future activity for which the complaining witness expressed a desire, and that activity may or may not have occurred. Therefore, the woman’s statement of future intent did not meet the requirements for admissibility under the rape shield statute. We hold the trial court did not err in concluding that the proffered testimony was not admissible as substantive evidence.

Impeachment

We agree, however, that the witness’s testimony about the woman’s statements about rough sex and choke play was ad­missible for impeachment purposes. The court clearly recognized the importance of defendant’s defense of consent, ruling prior to trial that he would be permitted to testify that the woman had introduced him to rough sex and choke play and en­couraged him to choke her during prior consensual sexual activity. Whether the woman had previously told a third party that she enjoyed engaging in rough sex and choke play with defendant was not collateral and the trial court erred in ruling to the contrary.

Defendant’s proffer was sufficiently detailed to permit this court to deter­mine that error occurred and to analyze whether that error was harmless. We hold the trial court’s restriction of the cross-examination of the woman and exclusion of the witness’s testimony was error.

On this record, we simply cannot, without usurping the jury’s fact find­ing function, determine what impact the erroneous exclusion of the proffered impeachment evidence had on the jury’s assessment of the woman’s, and corre­spondingly, defendant’s, credibility. The erroneous exclusion of the evidence was not harmless.

Reversed and remanded.

Moulds v. Commonwealth (Decker) No. 1396-15-4, Oct. 25, 2016; Fairfax Cir.Ct. (Carroll) Lauren Whitley, Sr. APD, for appellant; Katherine Q. Adelfio, AAG, for appellee. VLW 016-7-249(UP), 17 pp.