In civil sexual harassment, sexual assault, and sexual battery cases, the plaintiff victim usually alleges severe emotional distress as one of the harms caused by the alleged sexual misconduct. When that happens, the defendants (usually the accused perpetrator and his employer) look for and try to introduce evidence of “alternate stressors”—events alleged to be either the actual cause or a contributing cause of the plaintiff's severe emotional distress and related damages. One such alleged alternate stressor is another sexual assault committed against the plaintiff by someone other than the defendant perpetrator in the current case. In seeking to introduce such evidence, the defendants often contend they cannot get a fair trial without presenting it, stating that they are entitled to counter the plaintiff's evidence. The plaintiff, on the other hand, responds that sexual acts with others, whether or not consensual, are not relevant to the current case.
California law provides several protections to plaintiffs in civil sexual harassment, sexual assault, and sexual battery cases. But the protections are not absolute exclusions, and the defendants can overcome the protections if they can meet a high standard.
For example, section 2017.220 of the California Code of Civil Procedure typically prohibits the defendants from discovering a plaintiff's sexual conduct with individuals other than the alleged perpetrator. But if a defendant can provide a court with specific facts that establish good cause for the discovery of such sexual conduct and can persuade the court that the evidence is relevant to one or more material issues in the case, the reviewing judge may permit the discovery.
The California Evidence Code also provides limited protection to a plaintiff in a civil action alleging sexual harassment, sexual assault, or sexual battery. Subpart (a) of section 1106 prohibits a defendant from substantively using evidence of the plaintiff's sexual conduct with others to prove consent or the absence of injury to the plaintiff in the case against the current accused. But subpart (e) potentially permits the admission of such evidence to attack the plaintiff's credibility as provided in Evidence Code section 783. An example from a criminal action is helpful to understanding how evidence could come in under subpart (e). For example, a criminal defendant accused of rape might allege as a defense that his accuser consented to sex with him because she charged him money for it. At his trial, he might seek to introduce evidence that his accuser had previously been convicted of prostitution. Such evidence is an attack on the accuser's credibility and may be admissible if it clears other hurdles that might keep it out.
If a defendant in a sexual harassment, sexual assault, or sexual battery action seeks to attack the plaintiff's credibility using evidence of the plaintiff's sexual conduct with others, that defendant must follow a specific procedure to get the evidence admitted. Section 783 permits him to bring a motion to attempt to convince the court that the evidence is relevant. Such a motion must be heard outside the jury's presence.
But even if a defendant wins his motion under section 783, the court may still exercise its discretion under Evidence Code section 352 to exclude the evidence, even if relevant. If, in the court's judgment, the proposed evidence will unduly consume time or create a substantial danger of undue prejudice, confusion of the issues, or misleading of the jury, then the evidence may be excluded anyway. Given that all evidence is intended to hurt an opponent's case and all evidence takes time to present, the judge's task is not as easy as it sounds.
In a recent civil action, the Supreme Court reviewed the actions of the lower courts for compliance with some of the statutes just discussed. The plaintiff alleged she was assaulted as a fourth-grade student. She sued the school district that employed the teacher-perpetrator. The school district announced its intention to introduce at trial evidence that the plaintiff had been molested years later by a teenaged family friend in a separate incident. The school district's intent was to undermine the plaintiff's claim for emotional distress harms by arguing that the subsequent molestation had caused at least some of the plaintiff's emotional distress injuries and related damages.
The plaintiff filed a pretrial motion to exclude the evidence. The trial court denied the motion, finding the evidence wasn't protected by a shield statute and was relevant to the issue of who had caused the plaintiff's harms and to what extent, commonly referred to as a “causation argument” in the law.
The trial was stayed during opening statements so that the Court of Appeal could consider the matter. After being briefed and hearing oral argument, the Court of Appeal also found the evidence to be admissible. The Supreme Court granted the plaintiff's petition for review.
After a review of the statutes, including their legislative history, as well as cases interpreting the statutes, the Supreme Court held a victim's sexual acts with other individuals, including involuntary acts, may be admissible to attack the plaintiff's credibility pursuant to subpart (e) of Evidence Code section 1106, even if the evidence might otherwise be excluded under subpart (a). But the admissibility was subject to the procedures of Evidence Code section 783 and “especially careful review and scrutiny” under Evidence Code section 352.
The Supreme Court reiterated that section 783 was devised by the Legislature to “protect against unwarranted intrusion into the private life of a plaintiff who sues for sexual assault, by identifying and circumscribing evidence that may be admitted to attack such a person's credibility.”
The Supreme Court also noted that section 352's special informed review and scrutiny was designed to protect a plaintiff's privacy rights and limit the introduction of evidence concerning the plaintiff's sexual conduct. Because the lower courts didn't apply those protections in this case, the high court sent the case back to them to engage in a review that met the standards set forth by the high court.
The facts of this case show one play from the typical playbook of defendants attempting to avoid civil liability for sexual harassment, sexual assault, and sexual battery. In some cases, there may be valid reasons for discovering and presenting evidence of a plaintiff's sexual history. In others, the defendants are on fishing expeditions and are misusing the discovery process to harass and “victim shame” the plaintiff. With this decision, the Supreme Court lets the lower-level courts know that they are gatekeepers who need to perform more than a superficial analysis when a defendant seeks evidence of a plaintiff's sexual history.
The case is Jane S.D. Doe v. Superior Court of Los Angeles County, decided on July 27, 2023. The full opinion can be found here.