Original proceeding in mandamus.[*] CC CR1100933
Argued and submitted June 6, 2012; resubmitted January 7, 2013.
John Henry Hingson, III, Oregon City, argued the cause and filed the brief for defendant-relator.
Michael A. Casper, Assistant Attorney General, Salem, argued the cause and filed the brief for plaintiff-adverse party. With him on the brief were John Kroger, Attorney General, and Anna Marie Joyce, Solicitor General.
Margaret Garvin, Portland, filed the brief for amicus curiae The National Crime Victim Law Institute. With her on the brief was Amy Liu.
This is an original proceeding in mandamus. The issue presented is whether the state or federal constitution requires that a hearing to determine the admissibility of a rape victim's past sexual conduct be open to the public, notwithstanding that a statute mandates that that hearing be held outside the presence of the public. Relator is the defendant in a criminal action in which he has been charged with various sex crimes. Defendant claims that the alleged victim made false allegations against him so that she can later bring a civil action against him for money damages. He seeks to offer evidence at his criminal trial that the alleged victim falsely accused men of raping her on two previous occasions and that she did so for the purpose of financial or other gain. Before his criminal trial, defendant filed a motion under OEC 412 for a hearing to determine the admissibility of evidence of the alleged victim's prior sexual conduct. He also moved to allow the public to attend that hearing. The court granted the motion for a hearing but denied the motion to make the hearing public, reasoning that OEC 412 requires the hearing to take place outside the presence of the public.
Defendant petitioned this court for a writ of mandamus directing the trial court to open the OEC 412 hearing to the public, arguing that the Oregon and United States Constitutions require that hearings to determine the admissibility of evidence be conducted in public. This court issued an alternative writ. The presiding judge declined to change her ruling, and the case now is before us for decision. For the reasons set forth below, we hold that the exclusion of the public from hearings under OEC 412(4) to determine the admissibility of evidence of a sex crime victim's past sexual behavior under OEC 412(2) does not violate Article I, section 10 or 11, of the Oregon Constitution or the First or Sixth Amendment to the United States Constitution.
Under OEC 412,  Oregon's rape shield law, evidence of a victim's prior sexual history generally is inadmissible in a prosecution for rape or certain other sex crimes, except to prove motive or bias, or to rebut or explain certain state's evidence, or if otherwise constitutionally required. OEC 412 provides, in part:
"(1) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 to 163.427, or in a prosecution for an attempt to commit one of these crimes, the following evidence is not admissible:
"(a) Reputation or opinion evidence of the past sexual behavior of an alleged victim of the crime or a corroborating witness; or
"(b) Reputation or opinion evidence presented for the purpose of showing that the manner of dress of an alleged victim of the crime incited the crime or indicated consent to the sexual acts alleged in the charge.
"(2) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 to 163.427, or in a prosecution for an attempt to commit one of these crimes, evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless the evidence other than reputation or opinion evidence:
"(a) Is admitted in accordance with subsection (4) of this section; and
"(b) Is evidence that:
"(A) Relates to the motive or bias of the alleged victim;
"(B) Is necessary to rebut or explain scientific or medical evidence offered by the state; or
"(C) Is otherwise constitutionally required to be admitted."
In this case, defendant asserts that evidence of the alleged victim's past sexual history is necessary to prove motive. Specifically, he contends that evidence that the alleged victim previously falsely accused two other men of rape tends to prove that she is motivated by a desire to inflict pain on men with whom she has had consensual sex, that she is motivated by her pursuit of money to make false allegations of rape, and that she knows how to manufacture medical or scientific evidence to support a false rape charge.
Under OEC 412(4), a defendant who intends to introduce evidence of an alleged victim's past sexual history must move the court in writing to offer the evidence, and that motion must be accompanied by a written offer of proof. If the court concludes that the motion contains evidence that is potentially admissible under OEC 412, the court must permit the defendant to establish the admissibility of that evidence at an in camera hearing. OEC 412(4) provides:
"(a) If the person accused of committing rape, sodomy or sexual abuse or attempted rape, sodomy or sexual abuse intends to offer evidence under subsection (2) or (3) of this section, the accused shall make a written motion to offer the evidence not later than 15 days before the date on which the trial in which the evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which the evidence relates has newly arisen in the case. Any motion made under this paragraph shall be served on all other parties, and on the alleged victim through the office of the prosecutor.
"(b) The motion described in paragraph (a) of this subsection shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subsection (2) or (3) of this section, the court shall order a hearing in camera to determine if the evidence is admissible. At the hearing the parties may call witnesses, including the alleged victim, and offer relevant evidence. Notwithstanding ORS 40.030 (2), if the relevancy of the evidence that the accused seeks to offer in the trial depends upon the fulfillment of a condition of fact, the court, at the hearing in camera or at a subsequent hearing in camera scheduled for the same purpose, shall accept evidence on the issue of whether the condition of fact is fulfilled and shall determine the issue.
"(c) If the court determines on the basis of the hearing described in paragraph (b) of this subsection that the evidence the accused seeks to offer is relevant and that the probative value of the evidence outweighs the danger of unfair prejudice, the evidence shall be admissible in the trial to the extent an order made by the court specifies evidence that may be offered and areas with respect to which a witness may be examined or cross-examined. An order admitting evidence under this subsection may be appealed by the government before trial."
Finally, the rule is explicit that the hearing to decide relevancy is to be conducted outside the presence of the public. OEC 412(5) provides:
"For purposes of this section:
"(a) 'In camera' means out of the presence of the public and the jury[.]"
As a preliminary matter, it is clear from the foregoing that the statutory requirement that the hearing be held outside the presence of the public is mandatory; consequently, at least as a statutory matter, the trial judge was correct to enforce that requirement in closing the hearing to the public in this case. We therefore turn to defendant's contention that OEC 412's exclusion of the public from hearings to determine the relevance of evidence is invalid because is it contrary to Article I, sections 10 and 11, of the Oregon Constitution and the First and Sixth Amendments to the United States Constitution. Consistent with our usual practice to consider state constitutional issues before federal ones, State ex rel Juv. Dept. v. S.P., 346 Or 592, 606, 215 P.3d 847 (2009), we begin by examining defendant's arguments that the closed hearing provision of OEC 412 violates the Oregon Constitution.
We start with the constitutional provisions themselves. Article I, section 10, of the Oregon Constitution provides:
"No court shall be secret, but justice shall be administered, openly and without purchase, completely and without delay, and every man shall have remedy by due course of law for injury done him ...