Rape-Shield Laws and Third-Party Defendants: Where Iowa's Laws Fall Short in Protecting Victims

• Author: Jessica M. Donels
• Position: J.D. Candidate, The University of Iowa College of Law, 2017; B.A., Loras College, 2014
• Pages: 793-823

Rape-Shield Laws and Third-Party Defendants: Where Iowa’s Laws Fall Short in Protecting Victims Jessica M. Donels * ABSTRACT: This Note looks at the historical and modern policy of several rape-shield rules at the federal and state level, and analyzes how well these rules protect victims in Iowa who decide to sue potentially liable third-parties, such as school districts. The development and application of the federal rape-shield rules indicates a strong policy of protecting victims from both invasions of privacy and threats to their well-being—while encouraging criminal prosecution and lawsuits against those responsible—by removing factors that might discourage them from seeking justice. An analysis of this dual policy shows that the laws should apply equally to victims who sue their attacker directly and those who sue potentially liable third-parties. Yet, under Iowa law, victims suing third-parties fall into an uncertain loophole in the state’s rape-shield rules, which has the potential to harm victims and discourage important lawsuits. This Note proposes a solution that involves modifying the Iowa rape-shield rules as they apply to discovery and adopting the federal rape-shield rules as they apply to admissibility of evidence. I. INTRODUCTION ............................................................................. 794 II. THE DEVELOPMENT AND APPLICATION OF IOWA AND FEDERAL RAPE-SHIELD RULES TO CASES WITH THIRD-PARTY DEFENDANTS ................................................................................. 797 A. T HE H ISTORY OF AND P OLICY B EHIND THE F EDERAL R APE -S HIELD R ULES ................................................................ 797 B. I OWA AND F EDERAL R ULES G OVERNING D ISCOVERY OF S EXUAL -H ISTORY E VIDENCE ..................................................... 798 C. I OWA AND F EDERAL R ULES G OVERNING A DMISSIBILITY OF S EXUAL -H ISTORY E VIDENCE ..................................................... 801 * J.D. Candidate, The University of Iowa College of Law, 2017; B.A., Loras College, 2014. Special Thanks to Tim Semelroth for assigning the research memo that inspired this Note, and to the Iowa Law Review Vol. 102 Board for all of their assistance. 794 IOWA LAW REVIEW [Vol. 102:793 III. THE NECESSITY OF APPLYING IOWA’S RAPE-SHIELD RULES TO LAWSUITS AGAINST THIRD-PARTY DEFENDANTS ........................... 803 A. T HE P OLICY I NTERESTS IN P ROTECTING V ICTIMS IN D IRECT S UITS AND S UITS A GAINST T HIRD -P ARTY D EFENDANTS ARE I DENTICAL .............................................................................. 804 B. T HE I MPORTANCE OF H OLDING T HIRD -P ARTY D EFENDANTS A CCOUNTABLE J USTIFIES L IMITING THE U SE OF S EXUAL -H ISTORY E VIDENCE ..................................................... 809 IV. PRESENT FAILURE TO APPLY RAPE-SHIELD RULES TO LAWSUITS AGAINST THIRD-PARTY DEFENDANTS: THE FRESHMAN WRESTLER HYPOTHETICAL ........................................................... 811 A. T HE F RESHMAN W RESTLER ’ S S EXUAL -H ISTORY E VIDENCE U NDER THE I OWA RAPE -S HIELD R ULES ..................................... 812 1. Discovery ........................................................................ 813 2. Admissibility of Evidence…………………………… 814 B. T HE F RESHMAN W RESTLER ’ S S EXUAL -H ISTORY E VIDENCE U NDER THE F EDERAL R APE -S HIELD R ULES ................................ 817 1. Discovery ........................................................................ 817 2. Admissibility of Evidence .............................................. 817 C. B ROADER C ONCERNS : P REMISES L IABILITY FOR T HIRD -P ARTY T ORTS .................................................................................... 819 V. THE SOLUTION: AMEND THE RULES ................................................. 820 A. A MENDING I OWA ’ S R ULES R ELATING TO THE D ISCOVERY OF S EXUAL -H ISTORY E VIDENCE : C LOSE THE L OOPHOLES ............... 820 B. A MENDING I OWA ’ S R ULES R ELATING TO A DMISSIBILITY OF S EXUAL -H ISTORY E VIDENCE : A MEND , OR A DOPT THE F EDERAL R ULE ...................................................................................... 821 VI. CONCLUSION ................................................................................... 822 I. INTRODUCTION Imagine a new freshman wrestler at the best wrestling high school in the state. His coaches have achieved local-hero status, and his teammates—while known as bullies and troublemakers—rule the school. Practice begins, and every day the team has a 40-minute period of unsupervised time in the gym before the coaches arrive. This seems great at first—the team can bond, stretch, and practice some moves. But some of the freshman’s teammates have a different plan. They have a “tradition” to carry out. One day, he sees two of his teammates pin down another freshman, while a third pulls down his own pants and assaults the struggling freshman. He wants to object, but there are no adults around, and he certainly does not want to be next. Where were the 2017] RAPE-SHIELD LAWS AND THIRD-PARTY DEFENDANTS 795 adults? Why were these teenagers alone and unsupervised? What can the freshman wrestler do when his teammates turn to him? Although this example may seem extreme, it is by no means abnormal. 1 If our freshman wrestler is assaulted by his teammates and wants to use the courts as a means for justice, he has several options. First, he may report the assault to the police and ask that his attackers are punished by the state for their wrongdoing. 2 Second, he may pursue a civil suit against his attackers for assault and battery, and ask that he be compensated for any physical or psychological injuries. Finally, to promote a maximum level of deterrence and prevent this sort of assault from happening to anyone else, the wrestler may want to sue the school for failing to supervise the students entrusted to its care. 3 Unfortunately, in spite of the net potential benefits of pursuing all three of these legal options, 4 there are many factors that may discourage such a plaintiff from pursuing a lawsuit against the school. The plaintiff will bring this action in state court and state rules of procedure and evidence will apply because a lawsuit for negligent supervision is a common law claim 5 and the parties will likely lack diversity jurisdiction. In Iowa, this means the wrestler is not guaranteed the full protection of the federal rape-shield rules. 6 Under Iowa’s rape-shield rules, which offer victims less protection, the wrestler’s own sexual history may be subject to discovery, and under state rules of evidence it is unclear whether this evidence can be used against him in court. 7 The cost of keeping such evidence out will fall mostly on the wrestler 8 even though this evidence has little to no value, 9 and its use in trial has great potential to invade the plaintiff’s privacy and harm him psychologically. 10 These factors have the 1. See infra Part III.B (discussing the incidence of sexual assault at schools and the importance of multifaceted remedies to reduce this problem). 2. Under Iowa Law, the aggressors’ conduct would likely fit somewhere within Iowa Code Chapter 709: Sexual Abuse. See IOWA CODE § 709.1 (2015). 3. Iowa recognizes a civil suit for “negligent supervision” against school districts and employers. See, e.g. , Godar v. Edwards, 588 N.W.2d 701, 709 (Iowa 1999). This Note focuses on a school district as a hypothetical responsible third party; however, there are several common law theories for third-party liability for sexual assault that could be affected by the ambiguities in the Iowa rape-shield rules. See infra Part III.B. 4. See infra Part III.B (discussing the importance of encouraging suits against responsible third-parties). 5. See supra note 3 and accompanying text. 6. See infra Part II.B (discussing the application of the Iowa rule to discovery); Part II.C (discussing the application of the Iowa rule to admissibility of evidence). 7. See infra Part IV (discussing the application of state and federal rape-shield rules to the freshman wrestler’s suit). 8. See infra Part II (discussing the burden on the plaintiff to exempt sexual-history evidence from of discovery and keep the same evidence off of the record). 9. See infra Part III.B (discussing the low value of sexual-history evidence in civil suits). 10. See infra Part III.A (discussing the likelihood of harm to plaintiffs when this sort of evidence is brought onto the record). 796 IOWA LAW REVIEW [Vol. 102:793 potential to discourage important litigation that may both compensate the wrestler for his injuries from a responsible party, and encourage the responsible third party to take steps to prevent injuries to others. 11 It is important to note at the outset that there are very few reported cases interpreting Iowa’s rape-shield rules, and it is virtually impossible to provide qualitative or quantitative data on how the courts treat these rules in claims related to third-party defendants. 12 It is therefore equally difficult to measure the effect that the discrepancy between the federal rules and the Iowa rules has on the final result of these claims. But the fact that these cases are hard to find does not mean they do not exist—rather, it means they are being settled. 13 The period when most cases are settled is also the period when the shortcomings of the Iowa rape-shield rules has the greatest impact on the case: discovery. As discussed in Part IV, the discrepancy between the Iowa rape-shield rules and the federal rules gives defense attorneys the opportunity to engage in aggressive discovery techniques as “a tool to enforce settlement” by strategically increasing the cost of litigation, encouraging plaintiffs to settle based on the cost of maintaining the claim rather than the claim’s merits. 14 This Note considers the potential consequences of the discrepancy between Iowa rape-shield rules and Federal rules during trial; although, because...