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Complaint’s statement excluded in sexual battery case

Virginia Lawyers Weekly//August 28, 2020

Complaint’s statement excluded in sexual battery case

Virginia Lawyers Weekly//August 28, 2020

Where defendant is charged with sexual battery, the court denies his motion to admit the complaint’s statement made during sexual intimacy with defendant’s son that “she … would do anything to help her get ahead at work.’”


The trial court, in its letter opinion to counsel, stated the following. Defendant worked in retail sales and defendant was the general manager. The complainant and defendant’s son went on two dates. They engaged in “mild sexual intimacy in the son’s vehicle. On the second date, also in the son’s vehicle, they engaged in sexual intimacy and at some point the complainant told the defendant’s son that she ‘ … would do anything to help her get ahead at work.’

“Defendant argues that when sexual contact with his son did not advance her career, she then turned to the defendant to trade sexual favors for career advancement. When this was unsuccessful, she conjured these allegations.

“The defendant moves to admit the statement, that she ‘ … would do anything to help her get ahead at work’ in the context of sexual activity into evidence at trial. The Commonwealth objects.”

Rape-shield analysis

One could argue that the statement “is less about sexual conduct and more about a statement expressing a willingness to act sexually to further her career.” It could also be argued that “the statement was made incidental to the conduct of a sexual act, and the issue of sexual intimacy is relevant only for contextual rather than substantive purposes. If that was the case, no rape-shield analysis is necessary. …

“However, if the statement is intertwined with sexual activity and is sought to be introduced for purposes of showing that the complainant would engage in sexual intimacy to advance her career, that is conduct contemplated by the statute and the analysis therefore must be undertaken in that regard.”

In Winfield v. Commonwealth, 225 Va. 211 (1983), the court concluded, “‘Evidence of past sexual conduct, to be admissible under the “notice to fabricate” provisions of Code § 18.2-67.7(B), … must show a pattern of behavior which directly relates to the conduct charged against the complaining witness in the case on trial.’ …

“In this case, the defendant wishes to introduce one statement in the context of a single sexual encounter. While there may have been one prior incident of mild intimacy between the complainant and the defendant’s son, there is no argument, nor could one be made, that this was part of a pattern of conduct. Rather, this is one statement contained in one act. This statement exists in an evidentiary vacuum.”

In Ortiz v. Commonwealth, 276 Va. 705 (2008), the court, relying on Winfield, ruled that to admit a statement under the “motive to fabricate” exception in the rape-shield statute, “‘the proffered evidence of sexual conduct must show a pattern of behavior by the victim that directly relates to the conduct charged in the case on trial. There must be a “sufficient nexus” to render such evidence relevant and probative of a motive to fabricate.’”

As in Ortiz, in this case, “there was neither a nexus nor a pattern of past sexual conduct or, more specifically, the use of sexual favors for the purposes of career advancement. … One time is not a pattern and under any circumstances, any nexus between the sexual activity with and the statement to the defendant’s son and the subsequent intimacy between the defendant and the complainant is either tenuous or non-existent.”

Motion denied.

Commonwealth v. Ghousheh, Case No. MI-2019-1585, 1586, July 27, 2020; Fairfax County Cir. Ct. (Mann). James W. Hundley, Ann Bradley for defendant, Kathryn Humphrey, Robert Bezilla for the commonwealth. VLW 020-8-076, 7 pp.

VLW 020-8-076

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