High court narrows prior-sex rape defense

May 21, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The SunWashington Bureau of The Sun

WASHINGTON The Supreme Court ruled yesterday that states may seek to protect rape victims' privacy by requiring individuals accused of attacking them to reveal before trial any plan to show that the two had had sex prior to the alleged assault.

In the court's first-ever ruling on so-called "rape shield" laws, the justices declared by a 7-2 vote that the Constitution allows a state to bar evidence of prior sex relations between the two if the accused individual does not give advance notice of that defense.

Under "rape-shield" laws, now in force in most states, the person on trial usually is forbidden to bring out any evidence about the past sexual conduct of the alleged victim -- unless that sexual activity had occurred between those two individuals.

The aim of such laws is to protect the alleged victim's reputation from being undermined before the jury by evidence of sexual activity having nothing to do with the crime or the relationship between the alleged attacker and victim.

Increasingly, individuals on trial for rape have been contending that such laws unconstitutionally interfere with their right to put on a defense to sexual assault charges. Past sexual history of the alleged victim is often claimed to be important when the defense is that there had been consent to the sex.

In yesterday's ruling, the court did not deal with the basic ban on evidence of prior sexual history. Rather, it dealt with one facet of that: the constitutionality of requiring advance notice of the defense that the two had engaged in sex earlier and taking away that defense if notice was not given.

Laws requiring such notice, Justice Sandra Day O'Connor wrote for the court, are a valid approach to states' desire to give rape victims more protection "against surprise, harassment and unnecessary invasions of privacy."

If the accused person has a duty to disclose plans to show prior sexual activity with the alleged victim, prosecutors could then "interview persons who know the parties and otherwise investigate whether such a prior relationship existed." If such an inquiry disproves the claim, then it could be barred from the trial under state laws, the court indicated.

The O'Connor opinion said that the court was not upholding all attempts by states to require advance notice of the prior-sex defense, and it said that the Michigan law at issue in yesterday's case may go too far in some cases to deny accused people a right to offer a defense.

Thus, it said, it was upholding the Michigan law only against a claim that it would be unconstitutional in every case to require such notice. The constitutional guarantee that accused people must be free to offer a defense "is not so rigid" as to forbid all such notice requirements in rape cases, the court concluded.

The O'Connor opinion in Michigan vs. Lucas (No. 90-149) was supported in full by Chief Justice William H. Rehnquist and by Justices Anthony M. Kennedy, Antonin Scalia, David H. Souter and Byron R. White. Justice Harry A. Blackmun supported the result in the Michigan case. Justices Thurgood Marshall and John Paul Stevens dissented.

In a second decision yesterday on criminal law, the court upheld unanimously a 1984 law giving the U.S. attorney general the power to ban harmful new drugs temporarily by making it a crime to make or sell those drugs.

The 7-year-old law was passed by Congress to allow swift action against so-called "designer drugs" -- drugs that have some of the same effects on users as illegal drugs but differ enough in chemical formula that they are not illegal in that form.

Under the 1984 law, the attorney general may ban such drugs for up to 18 months, without going through the rigorous process of classifying a substance as a banned drug. To use the temporary power to ban a new drug, the attorney general must conclude that that drug poses "an imminent hazard to public safety."

The temporary power was used to make it a crime to make or sell a drug known in the street as "Euphoria," which the government found resembled amphetamine -- an illegal drug. While the temporary ban was in effect, a Fair Lawn, N.J., couple was charged with and convicted of plotting to manufacture "Euphoria." That drug has since been banned permanently.

The court ruled in the case of Touby vs. U.S. (No. 90-6282).

The case

Nolan K. Lucas, a Detroit man convicted of sexually assaulting a former girlfriend at knifepoint, was the key figure in yesterday's Supreme Court ruling.

He was found guilty of raping in his apartment a woman with whom he had had a romantic relationship for several months, up to the date on which she accused him of rape. At his trial, his lawyer tried to offer evidence that they had had sex relations before that incident, but the evidence was barred because he had not told the prosecution in advance of his plan to try to prove that.

Lucas had won in Michigan state appeals court, but the Supreme Court overturned that yesterday.

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