"Lying" about sexual orientation in a rape trial

The Tennessee Court of Criminal Appeals held this month that a defendant on trial for rape had no right to introduce testimony relating to the alleged victim's sexual orientation. State v. Boutchiche 2009 WL 102949 (Jan. 12, 2009). The victim here testified at the defendant's first trial that, when in the course of attempting to sell magazines to the defendant he made sexual advances, she told him she was a lesbian. At his retrial, defendant sought to introduce testimony that she had had sex with a man two weeks before the crime. The court said that this evidence was not relevant for a number of reasons - including, notably, that having sex with a man is not inconsistent with being a lesbian.

Sometimes I give Southern state court judges too little credit. The defendant was clearly trying to play with semantics and exploit ignorance and prejudice. The judges didn't buy it, and to boot, we get a clear judicial recognition that sexual orientation is not simply a categorical fact litigants can attempt to prove or disprove to their advantage, but rather an aspect of personal identity defined by the individual.

Nowadays courts typically exclude evidence of an alleged victim's sexual behavior in rape trials, but there are exceptions. One generally acknowledged exception is when such evidence might explain physical evidence such as bruises or semen. Another recognized by some courts is when apparent false statements about sexual behavior by an alleged victim may undermine his or her credibility. Here, the defendant argued that (a) the victim lied about about a lesbian, and that was relevant to credibility, and (b) the fact that, seemingly contrary to her earlier statement, she did have sex with men would help to explain the presence of semen in her body.

When queried by the court about this, the victim said that she "considered herself a lesbian regardless of having had sexual intercourse with a man, adding that she knew 'lots of lesbians that have slept with men.'" When asked by the court if she was in fact bisexual rather than lesbian, she said:

Well, I suppose if that's what it means, then yes, I guess I'm bisexual but-I mean, I really don't know what to say to that. I mean, I didn't lie about it. So, I mean, if that's what I said [that she was a lesbian], then that's what I said, and that's what I meant.

The trial judge excluded the evidence, saying (among other things):

I don't think that that testimony indicates that she was lying about her sexual orientation. She's just saying, “I told him I was a lesbian,” and she was a lesbian, and she did it so that he wouldn't get the idea she was there for some purpose other than to sell him magazines. So I don't think that that's ... a misrepresentation of her sexual orientation. I mean, she was a lesbian, even if she had-on prior occasions had sexual relationships with a man.

The appeals court held that the exclusion was proper. It reasoned as follows: (1) Since an expert testified that semen can only stick around for a few days inside the vagina, a two-week-old liaison had no relevance to the physical evidence in the case. Clearly, defendant couldn't use this two-week-old incident to suggest the mere possibility that she might have had sex with some man more recently. (2) During the retrial the victim did not mention her sexual orientation at all, and the defendant couldn't seek to undermine testimony that hadn't been presented. (3) The victim simply did not lie about her sexual orientation at the first trial; one can identify as a lesbian even if one has sex with men.