Deliveryman's Story

At D's trial for rape of V, D testifies that he works for a cable television company and that on the day in question he went on a service call to the home of the complaining witness. D claims that he arrived late in the afternoon and that V consented to--in fact initiated--sexual relations. D's version is that they fell asleep until late evening, at which time V panicked because the company truck was parked in front of the house in full view of the neighbors. She started screaming at him to get out, and he later found himself arrested for rape. There is no other evidence of bodily injury or weapons. V claims that she engaged in sex with D because D threatened to kill her.

D seeks to prove the complainant's reputation among deliverymen for initiating sex with those who make deliveries to her house. Admissible?

D offers several deliverymen to testify not only to V's reputation but also that she initiated sex with them when they delivered to her house. Admissible?

Consider the case pre-Rule 412. Proof of the victim's reputation for initiating sex with deliverymen would be offered under Rules 404(a)(2) and 405(a). But is "initiating sex with deliverymen'' a trait of character? Or is it such a specifically defined behavioral pattern that it suggests a line of logic much more pointed than general propensity? In other words, is initiating sex with deliverymen sufficiently specific and similar to the alleged event to warrant its proof, even by proof of specific acts? On the other hand, reputation proof by the other deliverymen would not be admissible to attack the credibility of the witness. The effect of the testimony might be to lead the factfinder to disbelieve the victim's story that the defendant raped her, but the logic by which the factfinder might arrive at this conclusion would not be based on a conclusion, first, that the witness was a liar and then, second, that she was lying when she said the defendant raped her. The logic instead would be that she initiated sex with the defendant just as she had with the other deliverymen, and therefore she is lying when she says she did not. This is not permitted under Rules 608 and 609.

Under Rule 412, the testimony of the deliverymen as to reputation and specific instances would be inadmissible unless the force of the statute is overridden by constitutional compulsion. Should it be? Althouse argues:

If the substantive law takes the victim's perspective, a consent defense should require proof that the victim actually consented, thus leaving a sexual aggressor at risk if he fails to seek clarification in an ambiguous situation. The law could also, without violating fundamental ideas of justice, require that any defense of subjective belief depend solely on the relationship between the defendant and the alleged victim at the time of the event in question, thus annulling the relevance of any information about the victim acquired extraneously. If so, no constitutional right to reputation evidence would ever arise.

See Althouse, Nw. U.L. Rev., supra. Do you agree? Would the Doe court agree?

1. This problem and the two following ones are adapted from Tanford and Bocchino, Rape Victim Shield Laws and the Sixth Amendment, 128 U. Pa. L. Rev. 544, 581, 586, 588 (1980).--EDS.