In a decision by the Idaho Court of Appeals, it may be that evidence of a child’s prior exposure to sexual behavior is admissible to answer the implicit question in every sexual prosecution: "how would a ten year old kid know about that sexual behavior?" If you have to defend against such charges, evidence that the child knew from a source other than the alleged sexual act may be proof that the child has fabricated the allegations. Still, whether the evidence will actually be admitted will depend upon the facts specific to the case.
In Idaho vs Molen, the Petitioner complained that the trial court had twice rejected his offer of evidence that the purported victim had been exposed to sexual behavior by her mother, thus making it more likely that she made up the story and had its building blocks from that prior exposure. To be clear, Molen’s defense at trial rested on his assertion that the victim "SZ" made it all up, perhaps at her mother’s insistence. The Court stated:
"Molen’s offer of proof does not demonstrate that S.Z. had previously observed such conditions or behavior. The offer of proof indicated the evidence would show that S.Z.‟s mother exposed S.Z. to “a constant, graphic, sexually charged lifestyle . . ., including openly having sex with multiple partners with [S.Z.] in the home, openly discussing sex toys and pornography in front of [S.Z.], and openly disrobing in front of other family members in the presence of [S.Z.]” These assertions are too vague and general to establish an alternate source of knowledge from which S.Z. could have fabricated her description of Molen‟s acts.
So Molen’s evidence, according to the Court, was not relevant – because it was not specific enough to meet the prosecution’s allegations. I suppose this means that when a child alleges intercourse, evidence of prior exposure to intercourse would be admissible but not evidence of some other sexual act.
But the rules provide that any evidence making the existence or nonexistence of a fact in issue is relevant evidence. Isn’t it relevant evidence if it answers the underlying "how would she know about that" question? Apparently not – according to the Court of Appeals.
There is one other nugget to mine in this decision – the Court held that the prosecutor erred by commenting on the Defendant’s invocation of his right to remain silent when she asked him if he had waited to tell his story until after he had heard all the witnesses testimony. Error? Yes. Result in reversal? No. The error was deemed to be harmless so the Petitioner did not get a new trial.
Whether you agree or disagree, this most recent decision is important to any defendant facing an allegation of sexual battery or lewd acts. These charges are so difficult to defend against that your lawyer needs to read this case – and soon! Call your lawyer and tell him or her about this decision.