New rules in rape trials called unsettling for victims

By JOHN P. McALPIN, Associated Press
July 24, 2003

TRENTON, N.J.(AP) _ Supporters of women's rights and crime victims are questioning a state Supreme Court ruling that allows details of an alleged rape victim's sexual past to be considered as evidence.

But activists say they are unsure how the decision, which law professors say rewrites decades of legal protection for rape victims, will immediately affect such cases.

Attorney General Peter C. Harvey is considering an appeal to the U.S. Supreme Court.

"We are studying this decision carefully as we are very concerned that the protection of rape victims is not eroded," Harvey said Thursday. "There are few crimes more heinous, vile and emotionally debilitating than rape. Rape victims deserve a broad degree of protection, both during the investigative process and at trial."

On Wednesday, justices said New Jersey's Rape Shield Law was intended to "deter the unwarranted and unscrupulous foraging for character-assassination information about the victim." But by a 5-1 vote, the court ruled that defendants in sexual assault cases have a constitutional right to present evidence to support a defense that may include examples of prior contact with the victim.

The ruling applies to past flirting or advances toward the person accused of rape, and does not allow for testimony about the accuser's prior sexual conduct with others.

The decision granted a new trial for Anderson Garron, 37, a Bridgeton police officer found guilty of sexually assaulting a woman. Garron has been in prison for three years.

During his trial, Garron alleged he had consensual sex with a woman who worked at the Cumberland County Prosecutor's office. He also maintained that she had been making passes at him and only pressed charges because he refused to return what he believed was a sexual favor.

That kind of allegation, however, should not be used to dismiss allegations of sexual assault, said Elizabeth Volz, president of the New Jersey chapter of the National Organization for Women.

In many rape cases, a woman has had some history with her alleged assailant, but that should not become a common defense, she said.

"Wanting to have sex with them at one point does not mean wanting to have sex with them at any point," Volz said.

Wednesday's 47-page decision was highly technical and dealt with many of the specifics of Garron's case. That gives NOW some pause, while it considers if another legal challenge or push for legislative relief is needed, Volz said.

Legal experts called the decision sweeping.

New Jersey's top court had to make some changes to the law because decades of legislative amendments had put the state statute well beyond what federal courts called acceptable, said Russell Coombs, a professor at Rutgers Law School in Camden.

The change now means what was once a nearly impossible hurdle for defendants has been lowered, making the law more balanced, Coombs said. Current statutes require a pretrial hearing to determine what can be said about a victim.

"Before this ruling, the New Jersey shield law was extremely unfair to criminal defendants and extremely favorable to alleged victims," Coombs said.