Commonwealth v. Bohannon
376 Mass. 90, 378 N.E.2d 987 (1978)
 

ABRAMS, J. The defendant Willard E. Bohannon, Jr. (Bohannon), was convicted after a jury trial of rape, kidnapping, commission of an unnatural act, and assault and battery by means of a dangerous weapon. He appeals these convictions pursuant to G.L. c.278, 33A-33G. We conclude that there must be a new trial.

We summarize the evidence presented at the trial. On May 22, 1974, Bohannon, Robert Stonestreet (Stonestreet), and a juvenile picked up the complainant who was hitch-hiking to Brockton. The group went to a liquor store where Stonestreet bought two quarts of beer. They then drove to a sandpit near Brockton. At trial, the complainant and the two codefendants, Bohannon and Stonestreet, agreed that various sexual acts took place at the sandpit, but they disagreed sharply as to which defendant had done what and as to whether the complainant had consented to participate in these acts.

The complainant, the only witness that the Commonwealth presented on the issue of consent, was a thirty-three year old, mildly retarded woman with an I.Q. of 63. She testified that after they arrived at the sandpit Bohannon ordered her out of the car and that she complied. She stated that he then forcibly undressed her and pushed her down on the ground. She maintained that he then penetrated her briefly and forced her to commit fellatio. She testified that he also briefly inserted a bottle and a stick into her vagina. The complainant testified that Stonestreet had also raped her.

The complainant's testimony concerning the events of the night in question was inconsistent and confused. Her allegations concerning Bohannon were inconsistent with testimony she had earlier given in the District Court of Brockton and with her statements to the district attorney two days prior to trial. On these occasions she had stated that Bohannon had not raped her. When she was asked on cross-examination to explain this inconsistency, the complainant stated that she had recently seen "in a mist'' that Bohannon had penetrated her. Her testimony concerning Stonestreet was also inconsistent. In the District Court, prior to trial, and at the trial, the complainant had maintained that Stonestreet had raped her. However, after her trial testimony was concluded, she informed the district attorney that she was now uncertain as to whether Stonestreet was involved. When recalled by the district attorney, the complainant testified that Stonestreet had not raped her.

Both Bohannon and Stonestreet testified at the trial. They asserted that the complainant consented to the sexual activities which had occurred. Bohannon testified that he asked her to get out of the car with him and she did. He stated that she then voluntarily performed fellatio on him and undressed. They lay down together outside the car, but he was unable to have intercourse. Bohannon testified that the complainant then became annoyed, and he tried using a beer bottle for a few seconds. Then the complainant handed him a stick and said, "use this.'' After a while she asked him to bring over his friends. Both Stonestreet and the juvenile then came over. Stonestreet testified that the complainant left the car voluntarily with Bohannon and that she appeared to acquiesce in the acts involved. He stated that the complainant had invited him to participate, but that he had been unwilling. He denied that he engaged in intercourse with her.

Medical evidence of the injuries sustained by the complainant indicated a small cut on the cervix which slowly oozed blood for several hours and a bruise on her eye. No evidence of sperm was found.

The central focus of the trial was the credibility of the complainant, particularly in connection with the issue of consent. During the cross-examination of the complainant, defense counsel requested a bench conference to determine whether it was permissible to ask her the following questions: "[w]hether or not she has prior to this made accusations that other men have raped her, and how many times, if the answer is yes, she has made these accusations.'' In support of the propriety of these questions, defense counsel made an offer of proof that, according to hospital records, the complainant had made a number of unsubstantiated, and apparently false, accusations of rape. The trial judge concluded that the questions could not be asked. The correctness of this determination is the sole issue presented for review.

In general, evidence of prior bad acts may not be used to impeach a witness's credibility.(1)3 One clear exception to this general rule is that records of criminal convictions may be used to impeach credibility. Evidence of prior false allegations has been excluded as a consequence of this general rule. Miller v. Curtis, 158 Mass. 127, 32 N.E. 1039 (1893). Commonwealth v. Regan, 105 Mass. 593 (1870).

In the Miller opinion, however, we indicated that the rule was not inflexible and that there might be cases presented in which such evidence might be competent. Miller v. Curtis, 158 Mass. at 131, 32 N.E. 1039. We conclude that this is such a case. When evidence concerning a critical issue is excluded and when that evidence might have had a significant impact on the result of the trial, the right to present a full defense has been denied.

The credibility of the complainant was the critical issue in the present case. The central issue in dispute was whether she consented to the acts involved, and the complainant, as in most cases of this type, was the only Commonwealth witness on the issue of consent.

Evaluations of credibility are, of course, within the exclusive province of the trier of fact. The defendant sought by his questions to bring to the jury's attention the fact that the complainant had made false allegations of rape on several occasions in the past. Evidence of prior false accusations of the specific crime which is the subject of the trial might itself have seriously damaged the complainant's credibility. Moreover, in this case the possibility that this evidence might have had a significant impact on the issue of credibility is enhanced by the fact that the complainant's testimony was inconsistent and confused. See Commonwealth v. Franklin, 366 Mass. at 290, 318 N.E.2d 469. Thus the proffered evidence, if believed, might have had a significant impact on the issue of consent and consequently on the outcome of the trial. In the circumstances of this case, we therefore think the exclusion of the defendant's proposed questions violated his right to present his defense fully.

We wish to stress two features of the present case which are relevant to the decision we have reached. First, the defendant made an offer of proof which indicated that he had a factual basis from independent third party records for concluding that prior allegations of rape had, in fact, been made and were, in fact, untrue. It is particularly important that when a proposed question even remotely connected with sexual conduct is to be asked "the cross-examiner should have a reason for asking any such questions and should be prepared to disclose that reason to the judge.'' Commonwealth v. White, 367 Mass. 280, 284, 325 N.E.2d 575, 578 (1975).

Second, the proposed questions dealt with prior allegations of rape; they in no way sought to elicit a response concerning the complainant's prior sexual activity or reputation for chastity. We, therefore, do not reach any issues related to the recently enacted "rape-shield'' statute, G.L. c.233, 21B, inserted by St. 1977, c.110. Nor should this decision be viewed as indicating any adherence to that "part of a legal tradition, established by men, that the complaining woman in a rape case is fair game for character assassination in open court.'' Commonwealth v. Manning, 367 Mass. 605, 613-614, 328 N.E.2d 496, 501 (1975) (Braucher, J., dissenting). We firmly reject approval of any evidentiary rule which is grounded in a mistrust of women rather than in logic.

The convictions are reversed and the cases are remanded for a new trial.

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Do you agree that evidence of prior (probably false) allegations of rape is not evidence of an alleged victim's past sexual behavior? In Bohannon, the Massachusetts Supreme Judicial Court held that evidence of prior false rape allegations was admissible to impeach the complaining witness's credibility. The use of such evidence did not implicate the state's "rape-shield'' statute because it "dealt with prior allegations of rape; [it] in no way sought to elicit a response concerning the complainant's prior sexual activity or reputation for chastity.''

Judge Ruth Abrams' opinion in Bohannon is even more significant when one considers that Massachusetts followed a general rule with respect to impeachment that was even more restrictive than Rule 608. A witness could not be asked about prior bad acts for purposes of attacking the witness's credibility even on cross-examination. In contrast, Rule 608 permits inquiry on cross-examination where relevant to truthfulness, subject to the judge's discretion, but prevents the examiner from contesting the witness's answer by extrinsic proof.

Under Judge Abrams' analysis, the defendant's effort to impeach the witness here is not an effort to establish that her general character for truthfulness is bad. The defendant is not concerned with whether she lies in any ways other than by making false allegations of rape, and his proof would not establish this. His proof does show a specific propensity to make false allegations of rape. Thus, the limitations against proving character do not apply.

If this case were analyzed under the Federal Rules--pre-Rule 412--the result would be that the examination would be allowed and the defendant should be permitted to prove the false allegations of rape with extrinsic proof (the hospital records). The limitations of Rule 608 do not apply because the evidence is not offered to prove the witness's general propensity for untruthfulness.

Does Rule 412 change this result? Judge Abrams suggests at the end of the Bohannon opinion that the concept of "past sexual behavior'' should not be interpreted to encompass past false allegations. If it were to be interpreted so as to exclude proof of past false allegations of rape, then the bar of the statute could be unconstitutional. Under the familiar doctrine of limited admissibility such evidence is not necessarily barred by Rule 412, even though it may also reveal something about the victim's past sexual conduct. But should it be barred?

Professor Althouse points out:

Students should know that the failure to report rape is far more common than false report. Indeed, if students [considered] the pressures and motivations affecting a person thinking of calling the police, they might see that the reasons for declining to report a rape far exceed those for falsely reporting.

[Problem IV-31] obscures all the difficulties encountered by the prosecution in giving weight to a rape victim's testimony and overcoming jurors' disinclination to convict for rape.

See Althouse, Nw. U.L. Rev., supra. Prosecutor Fairstein agrees:

The rarest circumstance in the field of sexual assault crimes--but by far the most pernicious--is that of false reporting.... It is hard to imagine what forces would drive someone to contemplate making such a claim, no less to carry out the entire deception. Aside from any ethical compunction, the stigma of being a victim is still a deterrent for many legitimate victims, as is the possibly rigorous path of a survivor through law enforcement agencies and medical protocols.

Fairstein, supra, at 217. Fairstein, does, however, describe two actual cases of false report and alludes to many more. She states that "most law enforcement officials equate the amount of false reporting of sex offenses with that of every other category of crime, at approximately 5 percent of the total number of reports.'' Id. at 229.

Professor Althouse offers this analysis of Bohannon:

Should [the] inconsistencies lead us to say that the defendant had a right to inquire into additional matters? True enough, the woman's testimony sounds confused, but this confusion indicates that the defense in fact conducted a successful cross-examination. It is sound, coherent, unshakable testimony that puts the opponent at a disadvantage and reveals the need for additional routes of inquiry. If the jury heard the woman characterize her own memory as "a mist,'' they certainly received the wherewithal to discredit her.

It is interesting that in spite of all the amply demonstrated deficiencies, the jury chose to convict. And evidence does support their decision. The defendant's own words may well have pushed the jury toward accepting the woman's testimony despite its shortcomings. After all, he asserted that she invited group sex and that she picked up a stick--apparently from the ground around the sandpit--and asked him to insert it into her vagina. The self-serving depiction of the woman as initiator has low credibility in light of the nature of the acts themselves (group sex and penetration with a rough, unclean object). A reasonable jury could find that the acts as described by the defendant imply nonconsent and that the defendant was lying about the woman's initiation.

Moreover, in light of the defendant's own testimony about his difficulty performing sexually, the woman's seemingly confused testimony becomes almost lucid. The real subject of dispute seems to be Bohannon's physical capacity to accomplish penetration. Given that the law of rape only requires slight penetration, anyone might have difficulty with the requisite legalistic line drawing in the case of an attacker who experienced impotence. In this analysis of the testimony, the jury's verdict makes sense.

But the appellate court reversed the trial judge for excluding evidence of "hospital records [showing that] the complainant had made a number of unsubstantiated, and apparently false, accusations of rape.'' Once again, our attention is drawn to the victimized man and the untrustworthy woman: "The central focus of the trial was the credibility of the complainant, particularly in connection with the issue of consent.'' The ordinary protection of allowing him to cross-examine her about the event in question and to present his own version of the story was, according to the Massachusetts Supreme Court, not enough. The court concludes that the defendant's "right to present his defense fully'' was violated. With the new evidence admitted, the defendant will be able to question her about prior allegations of rape. Given the witness's retardation, the likelihood of successfully confusing her with questions about several other events seems high.

The court also concludes that this evidence does not fall within the rape shield statute because it does not deal with "prior sexual activity'' but with false accusations. Similar observations can be made about the wolf-crying problem.... But unless the woman concedes the falsity of the prior allegations, cross-examination (or redirect examination needed to rehabilitate her) will drag her into an elaborate discussion of her sex life. How can she establish her credibility other than by convincing the jury that the accusations were true?

The court ends by saying the decision should not "be viewed'' as an expression "of the legal tradition, established by men, that the complaining woman in a rape case is fair game for character assassination in open court.'' It ends ... by saying, "We firmly reject approval of any evidentiary rule which is grounded in a mistrust of women rather than in logic.'' That is to say, as long as the court can convince itself that it heeds "logic,'' it can admit the evidence and still congratulate itself for maintaining enlightened values. Yet even the purveyors of the benighted old tradition, such as Professor Wigmore and Lord Hale, must have believed they answered the call of logic. Any sensitivity to the victim's plight, the court tells us, can be dealt with by requiring a strong offer of proof--which in this case turned out to be hospital records containing allegations. But what is so strong about hospital records? She did not previously report rape to the police; in any event, the records show only that she made the allegations, not that they were false. The existence of a statement in a hospital record would not establish reliability of the statement for hearsay purposes. But on the other hand, the fact that an allegation of rape was made in a hospital record does not establish that it was false. If the hospital record were offered to show only that the allegations were made, it might survive a hearsay objection, if it was in fact the regular practice of the hospital to record statements of that sort and if it also satisfied the required "trustworthiness'' analysis. But the court in Bohannon does not present us with enough information to make even that determination, so there is certainly no strong basis to conclude, as the court does, that the allegations were "apparently false.'' The court mentions that the allegations were "unsubstantiated,'' but why is the failure of the hospital records to include substantiation significant? It is not a hospital's business to investigate the truth of allegations of criminal activity. Even if the woman had gone to the police, which would have evinced a greater similarity to the case before the court, a police record lacking substantiation would not necessarily strongly show the falsity of the allegations, particularly in view of the tendency of the police to view many complaints as unfounded.

Althouse, Nw. U.L. Rev., supra.

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1. 3. The defendant contends that the purpose of the proposed cross-examination was to demonstrate bias on the part of the witness. If such were the case, the defendant would be entitled as a matter of right to reasonable cross-examination for the purpose of showing this bias. Commonwealth v. Cheek, 374 Mass. 613, 373 N.E.2d 1161 (1978) (Mass. Adv. Sh. [1978] 649, 651). Commonwealth v. Ahearn, 370 Mass. 283, 346 N.E.2d 907 (1976) (Mass. Adv. Sh. [1976] 1256, 1261). Commonwealth v. Graziano, 368 Mass. 325, 330, 331 N.E.2d 808 (1975). Commonwealth v. Michel, 367 Mass. 454, 459, 327 N.E.2d 720 (1975). See Commonwealth v. Ferrara, 368 Mass. 182, 330 N.E.2d 837 (1975); Davis v. Alaska, 415 U.S. 308 (1974). The defendant argues that since the complainant was returned to the hospital each time her mother thought she had sexually misbehaved, she thought she might persuade her mother to allow her to remain at home if she could convince her mother that she was raped. Thus, the defendant maintains that a rape charge and conviction are more in the complainant's personal interest than is generally true. The defendant, however, did not bring the bias aspects of his proposed cross-examination to the attention of the judge and the fact that the purpose of the questions was to demonstrate bias was not clear from the questions themselves. Therefore we consider the cross-examination as directed to credibility only.

 


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