Criminal Law Forum Assignment

Criminal Law Forum Assignment

Stephen F. Child appeals his convictions for two counts of criminal sexual penetration and argues that the trial court improperly excluded evidence of the alleged victim’s past sexual activities. Child claimed that this evidence would have demonstrated her motive to fabricate. Under sections 30-9-11 through 30-9-15 of New Mexico Statutes, evidence of the victim’s past sexual conduct and opinion evidence of the victim’s past sexual conduct or of reputation for past sexual conduct shall not be admitted unless, and only to the extent, the court finds that the evidence is material to the case and that its inflammatory or prejudicial nature does not outweigh its probative value.

Child (age fifteen) and the alleged victim (B.G., age sixteen) engaged in sexual intercourse. Child, B.G., and B.G.’s brother had been watching movies in B.G.’s bedroom. Child had been a friend of B.G.’s brother and family for nine years and usually slept on the couch in the living room when he spent the night. B.G. testified that after Child had headed for bed in the living room, he returned to her room and forced her to engage in sexual conduct, including oral, vaginal, and anal intercourse. The morning after the incident, B.G. told her mother that Child had raped her. Child was convicted of two counts of criminal sexual penetration. Child contended that the intercourse was consensual and claimed that B.G. lied because she feared that she would be punished by her religious parents. B.G. previously had been punished by her parents after having had consensual sexual relations with her then boyfriend. B.G. reportedly had told Child that her mother “was really upset . . . [about my having engaged in sex with my boyfriend;] she said that it was going to take her a long time to trust me again, . . . about three or four months[,] . . . and I wasn’t allowed to go out on dates with guys.” Child’s theory was that B.G. was motivated to fabricate the claim of rape because she feared the punishment and disapproval of her parents, devout Christians who “don’t believe in sex before marriage.” The State of New Mexico opposed Child’s motion to permit the cross-examination of the complaining witness in regard to her prior sexual conduct with her boyfriend on the grounds that this was intended to portray the complaining witness as an individual who is likely to engage in sexual activity outside of marriage. According to the appellate court, there are five areas to consider in making a decision on this issue: (1) whether there is a clear showing that complainant committed the prior acts; (2) whether the circumstances of the prior acts closely resemble those of the present case; (3) whether the prior acts are clearly relevant to a material issue, such as identity, intent, or bias; (4) whether the evidence is necessary to the defendant’s case; [and] (5) whether the probative value of the evidence outweighs its prejudicial effect.

As a judge, would you permit Child to cross-examine the complaining witness in regard to her sexual conduct with her boyfriend? See State v. Stephen F., 152 P.3d 842 (N.M. Ct. App. 2007).