Evidence of sexual harassment victim’s sexual practices and thoughts is inadmissible
Evidence of sexual harassment victim’s sexual practices and thoughts is inadmissible. B.K.B. v. Maui Police Dept, 276 F.3d 1091(9th Cir. 2002). The Ninth Circuit Court of Appeals held that evidence concerning a plaintiff’s sexual history and fantasies should not have been admitted in a sexual harassment case.
Here, a police officer sued her police department and county, alleging, among other things, sexual harassment. At trial, defendants called an officer who testified that plaintiff had told him about her use of a sexual stimulation device, adding that she had once used the device while thinking of him. She also allegedly modeled lingerie and told the officer she thought he would be “fun in bed.” The jury found for defendants. Plaintiff appealed, contending that defendants’ evidence was inadmissible under Rule 412 of the Federal Rules of Evidence.
Reversing in part, the Ninth Circuit noted that Rule, 412 forbids the admission of evidence of a plaintiff’s sexual behavior or predisposition in all civil or criminal proceedings involving alleged sexual misconduct, except under limited circumstances. Significantly, the court added, the advisory committee notes for this rule state that the word “behavior” should be construed to include activities of the mind, such as fantasies or dreams. The purpose of the rule is to safeguard the alleged victim against the invasion of privacy, potential embarrassment, and sexual stereotyping that are associated with public disclosure of intimate sexual details, the court said.
Additionally, in a sexual harassment lawsuit-as in any civil case-evidence offered to prove a victim’s sexual behavior or sexual predisposition is admissible only if its probative value substantially outweighs the danger of harm to a victim and of unfair prejudice to any party.
In this case, defendants offered the disputed testimony to impugn plaintiff’s moral character and presumably also to establish that workplace sexual advances and sexual misconduct were not unwelcome. However, the officer’s testimony failed to recount any admissions by plaintiff regarding the sexual advances directed at her, and plaintiff’s alleged statements regarding her sexual habits were not probative as to the welcomeness of any harassing conduct by her coworkers, the court said. Other courts have held in similar cases that the probative value of evidence of a victim’s sexual sophistication or private sexual behavior with regard to the welcomeness of harassing behavior in the workplace does not substantially outweigh the prejudice to the victim. The evidence presented here was harmful and had no probative value, the court concluded.
Accordingly, the court remanded the case for a new trial and affirmed an award of sanctions against defendants’ counsel.
Gerald T. Johnson, Wailuku, Haw.
Copyright Association of Trial Lawyers of America May 2002
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