Sex, Lies, and Credibility – False Accusations and Cross-examinations Post Bohannon

Sex crimes prosecutions have come a long way since the days at Common Law where an alleged victim’s accusation had to be accompanied by corroboration. Comprehensive Rape Shield Laws and Victims’ Rights Acts have certainly leveled the playing field since that time for purported sex crimes victims both locally and nationally. As a long time sex crimes defense attorney (and former sex crimes prosecutor), I have no issue with Rape Shield restrictions that make an alleged victim’s sexual history irrelevant, and thus inadmissible; or the fact of how she was dressed, or whether or not she was dancing provocatively, likewise irrelevant to a jury’s determination of guilt or innocence. Moreover, although the advent of social media and frequent use of networking sites often provide defense attorneys with enlightening (and disturbing) information about the complainant, I guess I’m okay with knowing that, for the most part, courts will deem it too personal and irrelevant to survive rape shield as well — which doesn’t mean I won’t still fight to find a way to get it admitted. However, I am deadset against, and remain thoroughly confused by, any interpretation of rape shield that prevents, or limits, introduction of evidence that goes directly to the issue of a complainant’s credibility. A literal case in point is found in the Massachusetts Supreme Judicial Court’s (SJC) inexplicable decision in Commonwealth v. Bohannon, 378 NE 2d 987 (1978) (Bohannon I), and its later expanded decision in Commonwealth v. Bohannon, 434 NE 2d 163 (1982) (Bohannon II), where the High Court essentially ruled that proof of an alleged sex crimes victim’s false accusations are inadmissible in sexual assault cases unless the false accusations in question pertain to the same charge before the current jury. Huh? What? Believe it or not, that’s not all? More than that, the SJC just didn’t rule that the false accusation must have been made in the same class of case (e.g., a sex crimes case) but in the exact same type of case. In other words, if the defendant is on trial for rape and the false accusation involved a claim of rape, the complainant may be cross-examined about her false statement. However, if the false accusation was instead about an Indecent Assault & Battery on a Child (a very serious felony in its own right), but the charge on trial is rape, she may not be cross-examined about her false accusation. Worse still, if the false accusation had nothing to do with a sex crime, it has no chance of being known. What possible sense does any of this make? Can anyone explain it? Isn’t a lie a lie and isn’t a liar a liar? Determination of witness credibility is not just within the purview of the jury, it is exclusively their duty to decide. Shouldn’t they know something like this? But wait. That’s not all. Bohannon and its progeny have been interpreted as requiring several factors that must also be present when deciding whether or not the exception to the general rule barring evidence of prior false allegations may be applied, i.e, whether there are additional circumstances allowing admission. They include[1]:

Basically, what this means is that a complainant can have made the most preposterously/patently false claim (use your own imagination) about even the exact same type of sex crime currently on trial and unless at least four (4) of the Bohannon factors establishing falsity are present, the jury will never know about it. See Commonwealth v. Hicks, 23 Mass.App.Ct. 487 (1987). Bohannon also means that even when there’s proof that a sex crimes complainant lied about a prior report of the same type of assault, it still might not be admissible if the other factors are not present. This is justice? This is fair? Definitely not, but it is the law. One recent case I handled on appeal provides a salient example. There, trial counsel sought to introduce evidence in an aggravated rape case about an alleged assault and battery supposedly committed by her ex-boyfriend. The complainant later told a relative she had made up the accusation to get back at him for something. The police investigated and declined to take any action against the ex-boyfriend. Astoundingly, the trial judge ruled any related cross-examination/evidence inadmissible and out of bounds. The Massachusetts Court of Appeals (MAC) agreed. Unfortunately, both rulings were inevitable given the extreme protections states such as Massachusetts recognize under rape shield. Now I’m not advocating throwing the baby out with the bathwater and returning to the old days where victims had no rights or protection and when cross-examination was an "anything goes" proposition that essentially put the victim on trial. But I am saying let’s quit with the fiction that just because someone is caught lying about one type of behavior, the nature of sex crimes are so personal that she isn’t likely to lie about that, too. Bull! As I said, a liar is a liar and anyone who is willing to lie in a situation that places another person’s liberty interest in jeopardy ought to be viewed with extreme skepticism and held to a higher level of scrutiny. That’s common sense. That’s justice, and unless or until courts come around to that way of thinking, justice will continue to be sacrificed in favor of political expediency by catering to special interests such as victims’ rights groups. That’s not justice. And that’s just plain not fair!

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828