Friday, November 21, 2014

Slut Shaming: Don’t Do It

State v. Groce, 2014 VT 122

By Elizabeth Kruska

Sometimes SCOV takes an entire paragraph to call out some bad behavior. This is one of those times. Good on you, Chief Reiber. It’s not cool to call someone a slut. Just don’t do that. Don’t.

The thumbnail version of the story is this. Complainant (not Slut, as perhaps the State’s Attorney would prefer she be called) and her boyfriend Jason went out for drinks in downtown Rutland, and then ended up at a party at the home of some friends. Complainant and her boyfriend got into an argument because he was talking to other people at the party. He decided to cool off and walked home, leaving her there.

After he left, she went into a bedroom and made some phone calls, and then fell asleep. Her story is she woke up later to find a man who she did not know, performing oral sex on her. According to her she got up, ran into another bedroom and told the people at the party what happened. Then she got a ride home and her boyfriend took her to the police station and the hospital.

The other witnesses told the story a little differently, including that at one point Neiman was sleeping on the bed next to Complainant, and that when he came out he said the oral sex was consensual.

Neiman testified in his own defense at his trial. He said the sex was consensual. There was also testimony about cocaine use, and how people behave while using cocaine and drinking (paranoid and very interested in sexytimes, among other things). There was some evidence they both drank and both used cocaine that night. This sounds like it was quite the party.

During trial, Jason testified and was asked about a phone call he had with one of the friends, Nate Cook. The defense lawyer asked a question about whether Nate told Jason that Complainant never came into Nate’s room on the night of the incident. The State’s Attorney didn’t object to this. When the State got to re-direct, the State’s Attorney asked Jason if Nate said he was mad at Neiman, and if he thought Neiman “could have probably done it.” Neiman’s lawyer objected on hearsay and relevance grounds.

The judge said it was ok for those answers to come in to evidence, because the defendant “opened the door” to hearsay statements by asking about other hearsay statements from the same conversation.

The State argued in its rebuttal closing argument that the way the defense was painting the case, that since there was a fight between Complainant and her boyfriend that she would then “go off and be a slut.” Not ok.

Neiman was convicted and appeals. SCOV reverses.

First of all, SCOV isn’t convinced that Neiman “opened the door” to a whole barnload of hearsay statements by eliciting hearsay statements himself. “Opening the door” really only applies to cure a situation where details need to come into evidence so that there is not an incomplete or misleading picture. It doesn’t mean every little detail or partly related information automatically becomes admissible.

SCOV says that the questions the defense asked about the phone call didn’t leave an incomplete or misleading picture about the facts. The point of the questions was about how Jason and Nate were getting along and also about Nate’s memory of what happened that night. That’s relevant because it was inconsistent with Complainant’s memory. Also, the extra questions asked by the State didn’t serve to rebut anything the Neiman was saying. Finally, Nate Cook’s opinion about whether Neiman was guilty or not was way beyond the limited scope of what he discussed on cross-examination.

SCOV reverses, because the door wasn’t actually open, and the testimony that came out wasn’t harmless. This was a case based largely on witness credibility. Both Neiman and Complainant testified, but other people also testified about things that happened immediately before and after. Nate Cook’s testimony was very prejudicial because even though it was speculative, it went directly to Neiman’s guilt. Also, the jury had a really hard time in the case – they deliberated for seven hours and came back initially saying they couldn’t make a decision. SCOV determines that since it was so close, Nate Cook’s opinion testimony might have swayed the jury toward finding Neiman guilty.

Sothat’s enough for reversal.

Then, boom, pow, SCOV tells us all that profanities and name calling have no place in Vermont courtrooms. Defendants don’t get to call sexual assault complainants sluts; there’s absolutely no reason for prosecutors to do that. In fact, let’s all not do it.

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