Is Clothing Probative of Attitude or Intent?
Implications for Rape and Sexual Harassment Cases
Theresa L. Lennon Sharron J. Lennon Kim K P Johnson
RAPE AND SEXUAL ASSAULT: CASE LAW
Although there is no available data showing how often clothing is introduced in rape or sexual assault cases for the purpose of showing consent, it does occur.' In a 1978 sexual
assault case,2 the Montana Supreme Court noted that the 'defendant testified that the sexual contact was encouraged by the dress and behavior of the prosecutrix
a fifteen year old girl who had come to the defendant's home to baby-sit his children.' In 1988, a man convicted of rape in Georgia appealed a trial court's refusal to introduce evidence that 'the victim wore sexually suggestive clothing' to show her consent to sexual intercourse.'
Newspaper reports provide accounts of instances in which the victim's clothing was introduced into evidence. A 1989 Florida case, was one striking instance in which post-trial interviews with the jurors were discussed and widely quoted.6 In that Florida case, the victim's clothing was not only introduced into evidence, it was a crucial piece of
the defense argument.7
From Law & Inequality: A journal of Theory and Practice (1993,june), Vol XI, No. 2),39z-4ii. Reprinted by permission of University of Minnesota, Law School
In a 1977 Wisconsin rape case, the judge considered the sixteen year old complainant's clothing and sentenced the convicted fifteen year old defendant to
probation.' The judge called for women to 'stop teasing" and for a 'restoration of modesty in dress."9 Additionally, the judge stated that 'whether women like it or not, they are sex objects. Are we supposed to take an impressionable person 15 or 16 years of age and punish that person severely because they react to it normally?"10
Similarly, at the William Kennedy Smith sexual assault trial, the defense sought to introduce the complainant's bra into evidence." The bra was made of lace and decorated with artificial pearls.12 The defense argued that this was "the single most important piece of evidence' because "the lack of damage to these items will clearly prove Mr. Smith's innocence." The judge ruled the bra admissible to counter the complainant's testimony that she was tackled, pinned down, and raped.14 Although the bra was not specifically introduced to show consent, the prosecutor nevertheless recognized the implications of showing such prejudicial evidence to the jury.'-' The prosecutor unsuccessfully argued that showing the bra to the jury could improperly imply that 'someone who buys their underwear at Victoria's Secret cannot be a victim of a sexual battery.116
Statute Federal and most state statutes do not explicitly address the admissibility of clothing of a rape or sexual assault complainant as evidence. In these jurisdictions, if such evidence were introduced, it would be admitted pursuant to the governing rules of evidence.
Most states adhere to rules similar to the Federal Rules of Evidence. These rules provide that "all relevant evidence is admissible"17 and that 'evidence which is not relevant is not admissible."' Thus, to introduce clothing as evidence of consent, the defendant would have to show that the evidence was relevant to the question of consent. The evidence would be considered relevant if it had any probative value, i.e. if it had any likelihood of proving or disproving consent.19 Because clothing conveys messages to observers which are interpreted reflections of the wearer's actual intent, attitudes, and personality characteristics,30 clothing is not relevant to the issue of consent. The popular belief, however, is that clothing does accurately convey attitude and intent.21 Because judges are not immune to inaccurate perceptions and because they may adhere to stereo- typical beliefs," they are likely to find that clothing is probative of consent and thus admit the victim's clothing as evidence pursuant to the rules of evidence.
However, even relevant evidence 'may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.121 This rule creates a balancing test for the judge to weigh the probative value of a particular piece of evidence against its prejudicial effect .24 In practice, the rule favors admissibility because it requires the prejudicial effect to 'substantially" outweigh any amount of probative value before the evidence is excluded.25 Again, because judges may adhere to stereotypical beliefs about clothing, they may find clothing's probative value to show consent outweighs any prejudicial effect to the complainants Under these general rules of evidence, judges are likely to admit clothing to show consent.
Georgia, Alabama, and Florida are the only states that have rape shield statutes that specifically address the victim's dress as evidence. Georgia and Alabama include the victim's 'mode of dress' under the definition of 'past sexual conduct.'21 As such, the victim's dress is generally inadmissible in a prosecution for rape."
Georgia, however, grants an exception to the general rule of admissibility. Georgia permits the defense to introduce evidence of the victim's dress if it 'supports an inference that the accused could have reasonably believed that the complaining wit- ness consented to the conduct.'29 This statute expressly permits evidence of clothing to show implied consent, provided that belief is 'reasonable." Unfortunately, the statute does not provide an explanation of when such an inference is reasonable and instead leaves that up to the presiding trial court judge for a determination." This may be problematic because the judge's deliberation and decision may be affected by inaccurate perceptions and beliefs. The effect, then, of the Georgia statute is to expressly pro- vide only one instance in which clothing may be found relevant, to show consent, and in those instances, provide the judge with the discretion to determine when such evidence is 'highly material.'
Alabama also provides an exception to its general rule of inadmissibility. Alabama permits evidence of the victim's attire if the court finds that the complainant's '(mode of dress) directly involved the participation of the accused. 131 How a rape victim's "mode of dress' can 'directly involve the participation of the accused' is unclear. This statutory provision has not been interpreted by the Alabama courts. By including the complainant's dress as part of her "past sexual conduct" under the rape shield law, Alabama presumably, like Georgia, is attempting to allow such evidence, if offered, to prove the defendant's 'reasonable belief' that the victim consented .32 Assuming this interpretation prevails, Alabama's statute, like Georgia's expressly permits the evidence of clothing if offered, to show consent.
Florida is the only other state to address the victim's clothing in its rape shield law. Florida's statute mandates that "evidence presented for the purpose of showing that manner of dress of the victim at the time of the offense incited the sexual battery shall not be admitted into evidence' in a rape prosecutions In other words, Florida prohibits clothing if used to show victim provocation. However, the Florida statute, by not expressly forbidding it, permits the introduction of clothing if it is used to show consent.34
No other state presently addresses the admissibility of clothing.35 Pursuant to the general rules of relevancy, courts in those states are likely to permit clothing as evidence. Only Florida, Alabama and Georgia forbid such evidence under some circumstances, such as when offered to show victim provocation. However, Georgia and Alabama expressly permit, and Florida implicitly permits, the introduction of clothing as evidence to show that a victim consented to sexual contact. In any jurisdiction, clothing is therefore likely to be admitted if offered to prove consent to rape or sexual assault.
SEXUAL HARASSMENT: CASE LAW
In Meritor Savings Bank v. Vinson, 36 a female bank employee brought sexual harassment charges against a bank supervisory She alleged that she had sex with her supervisor over forty times at his demand, that he fondled her, that he exposed himself to her, and that he forcibly raped her during her four years working at the bank.38 The defendant supervisor denied the charges.39 In his defense, the defendant supervisor introduced 'voluminous testimony" regarding Vinson's manner of dress to show that she welcomed the alleged advances.40
The judge allowed testimony at trial which indicated that Vinson often dressed in revealing clothing, that at least once a bank customer commented on her clothing, and that once Vinson had to be sent home from work because the bank considered her dress inappropriate.41 The District Court permitted the evidence regarding dress, presumably because it could show whether the sexual attention was welcome.42 The Court of Appeals reversed, stating that evidence of Vinson's dress "had no place in this litigation.'43
The United States Supreme Court subsequently reversed the Court of Appeals on the issue of introducing clothing.44 The Supreme Court held that in deciding "whether respondent by her conduct indicated that the alleged sexual advances were unwelcome," the evidence of Vinson's 'sexually provocative' dress was "obviously" relevant.45 The Supreme Court firmly stated that there is no per se rule against the admissibility of evidence of the alleged victim's dress.46 In fact, Meritor has been cited by at least one lower federal court as support for the proposition that '(a.) court must consider any provocative speech or dress of the plaintiff in a sexual harassment case.'47
Statutes There are no federal or state statutes that address clothing as evidence of welcoming sexual advances in a sexual harassment case. When confronted with this evidence, judges must proceed to evaluate the evidence in light of its probative value and prejudicial effect. As demonstrated by the Supreme Court in Meritor, judges are likely to adhere to the belief that clothing is probative as to whether the wearer welcomed sexual advances, and thus admit the evidence.
The Women's Legal Defense Fund (WLDF'), in its amicus curiae brief to the Supreme Court in the Meritor case,4' made several evidentiary arguments to exclude the clothing evidence.49 First, the WLDF argued that the dress evidence was simply irrelevant.
"Vinson (did) not claim that she was offended or intimidated by Taylor (her supervisor) or other men employed at the branch wearing tightly fitting shirts and pants ... It (was) the environment created by these actions of the supervisor that are at issue here. Vinson's taste in clothes and style of dress are not."" The WLDF went on to acknowledge that despite any authority on the issue one way or the other,
any purported justification of this view (that evidence is relevant) assumes that
evidence of dress ... can reveal whether a woman is more or less likely to welcome sexual advances from her supervisor. A woman's choice of clothing ... (is) no more relevant to her claim of sexual harassment than a fraud victim's generosity or extravagance.
The assumption that general aspects of a woman's life and self-presentation are reliable indicia of her response to any particular sexual advances requires believing that a woman who dresses ... in a particular fashion is more likely to want to have sex with her super-visor than a woman who does not. This is nothing other than resurrection of the discredited myth that only women who ask for trouble get it. This is an 'archaic and stereotypic notion' of the most pernicious kind."
Second, the WLDF argued that the evidence of Vinson's dress was offered in an 'inflammatory attempt to impugn her character' and thus was prohibited by Federal Rule of Evidence 404.52 Rule 404(a) provides that 'evidence of a person's character or trait of his character is not admissible for the purposes of proving that he acted in conformity therewith on a particular occasional The WLDF speculated that defendant sought to introduce the clothing to show that Vinson was sexually active and that 'sexually active women would never find sexual advances unwelcome.114
Third, the WLDF argued that the evidence of clothing did not go to impeach Vinson's credibility." Under Federal Rule 404(a)(3), character evidence can be admitted if offered to impeach the credibility of the witness by indicating the witness's truthfulness or untruthfulness' But the WLDF argued that "none of the evidence offered here has anything to do with truthfulness."17
Fourth the WLDF argued that the clothing is not admissible if offered to show habit." Federal Rule of Evidence 406 permits evidence of conduct of such 'invariable regularity (that) there can be no doubt that this fixed sequence of acts tends strongly to show the occurrence of a given instance."9 The WLDF contended that
Even if a plausible argument could be made from the evidence that Vinson was in the habit of wearing revealing clothing, it could prove only that she wore such clothing around Taylor and everyone else who worked at the bank. It is in no way probative of whether Taylor subjected her to sexual harassment, which is the issue of this case.60
Fifth, the WLDF asserted that even if the court found the clothing evidence relevant, its prejudicial value outweighs any probative value and thus it should be excluded.61
The meaning of personal appearance and clothing is very dependent on an individual's personal taste, cultural milieu, and views about the appropriateness of the clothing to the context ... Even the description of clothing as 'provocative' contains a complex series of value judgements that interferes with the task of determining 'what actually happened on the particular occasion.'
The complexity of individuals' responses to perceived female provocativeness combined with the deeply emotional nature of such responses, makes admission of evidence of a plaintiff's clothing a dangerous and unpredictable undertaking. Such evidence has 'an undue tendency to suggest decision on an improper basis, commonly though not necessarily, an emotional one.' Other evidence of a plaintiff's finding sexual advances 'welcome' should not be difficult to produce, if it exists. The virtual certainty of stereo typically based prejudice in response to evidence of dress mandates its exclusions
Sixth, the WLDF argued that the evidence of Vinson's dress, if admissible, would be an unwarranted invasion of her privacy.63 The WLDF noted that "even in the criminal context, the use of evidence of a complainant's past sexual behavior is more often harassing and intimidating than genuinely probative" and so it should be excluded.64
I .American Civil Liberties Union attorney Charlene Carres testified before the Florida House of Representatives that evidence of a victim's dress is consistently introduced at sexual battery trials. Barbara From, Sexual Battery: Mixed-Signal Legislation Reveals Need for Further Reform, 18 FLA St. U. L. Rev. 579, 587@ (I 99 1). There are not, however,, any statistics available to show how often a victim's dress is introduced. Because evidence is introduced at the trial court level, and because the transcripts from those courts are not easily accessible, it is not clear how often clothing has been introduced to show consent. Unless the trial court decision to admit the clothing is appealed and an appellate record is created, the information may not be available. Thus, it is difficult to be sure, based solely on appellate court opinions, how often
clothing has been introduced to show consent. 2 .Montana V. Smith, 576 P.2d I I IO (Mont. 1978). 3- Id. at 1111
4. Id. at 1110-11.
5. Ford v. State, 376 S.E.2d 418, 419 (Ga. Ct. App. 1988).,The trial court ruled that the proffered in camera evidence was inadmissible under the state rape shield law. Id. The Court of Appeals upheld the trial court ruling. Id.
- e, e.g., Jury Blames Woman's Clothing in Rape Case UPI, October 5,1989, available ,,,@in Lexis, Nexis Library, UPI File; Rape Victim to Blame, Says Jury The Daily Tele-
graph, October 6, 1989 at 3; jury, supra note 1; Rape-Add-#-9, supra note 1; Man Acquitted, supra note 2; Women Under Assault, NEWSWEEK, July 16, 1990 at 23.
28. Ga. Code Ann. 24-2-3 (a) (Michie Supp. 1992); Ala. Code 12-21-203 (a)(3) (1991).
29. Ga. Code Ann. 24-2-3(b) (Michie Supp. 1992). If the defendant wishes to introduce evidence under this exception, the statute also provides for an in camera hearing in which the judge is directed to admit the evidence upon a finding that the evidence "is so highly material that it will substantially support a conclusion that the accused reasonably believed that the complaining witness consented to the conduct complained of and that justice mandates the admission of such evidence.' Ga. Code Ann. 24-2-3 (c)(2)(Michie Supp. 1992)(emphasis added). Thus, the standard for admitting this evidence to show consent is high.
30- only one case in Georgia has surfaced in which clothing, interaria, was introduced to show consent. See Ford v. State, 376 S.E. 2d 418 (Ga. 1988). In Ford, the appellate court, without explanation, held that '(the clothing) did not support an inference that at the time the rape occurred, defendant could have reasonably believed the victim consented to intercourse." Id. at 419. Without more, this case is not very helpful in interpreting the statute. At best, it can be assumed that the Georgia courts will apply the statute in a strict manner, admitting evidence of clothing only in rare circumstances.
3 I. Ala. Code 12-21-203 (1991).
32. This is presumed because other evidence of the complainant's past sexual history, such as actual past sex" relations with the defendant, are deemed relevant by this statute because if the complainant consented on one occasion, either: 1) she is more likely to have consented on a later occasion, or 2) it is 'reasonable" for the defendant to believe there was consent on the later occasion. Because the Alabama statute defines the complainant's clothing as part of her past sex" history, it is presumably attempting to treat clothing as it would past sexual relations with the defendant.
3 3. Fla. Stat. Ann. 794.022 (3)(1992).
34. Despite this rape shield law, a Florida defense attorney can 'still attempt to introduce evidence of a complainant's manner of dress, not to show that the victim incited the attack, but to prove that the victim's manner of dress was part of the total circumstances that led the defendant to believe that the sexual conduct was consensual." From. supra note II, at 589.
35. There is a bill pending before the New York Assembly which would prohibit defense attorneys from introducing evidence that a rape victim wore provocative clothing
Dressing Down, The Chicago Tribune, July 12, 1992 (Womanews), at 1. A supporter of the bill, Republican State Senator Michael J. Tully Jr., stated that '(a) person's manner of dress does not give another person license to commit the violent act of rape." Id.
36. 477 U. S. 57 (1986).
38. Id. at 60.
39. Id. at 61.
40. Id. at 63.
41. Brief of Petitioner, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) No. 84-1979
42- Meritor, 477 U. S. at 63.
43- Id. The dissenting judges, Judge Bork, judge Scalia and judge Starr, argued that denying the defendant the opportunity to introduce evidence of the complainant's clothing was tantamount to denying the defendant the right to defend himself. Vinson v. Taylor, 760 E2d 1330, 1331 (D.C. Cir. 1985) (Bork, J., dissenting). the dissent stated that although 'hardly determinative, this evidence is relevant to the question of whether any sexual advances by her supervisor were solicited or voluntarily engaged in. Obviously, such evidence must be evaluated critically and in the light of all the other evidence in the case, but it is astonishing that it should be held inadmissible." Id.
44. Meritor, 477 U.S. at 69.
47- Jones v. Wesco Investments, Inc., 846 F.2d 1154, 1155 n.4 (8th Cir. 1988) (emphasis added).
48. Brief Anticus Curiae of the Women's Legal Defense Fund in support of the Respondent, Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) (No. 84-1979).
49- Id. at IV.
5o. Id. at IV.A. (footnote omitted).
5 I. Id. (citations omitted).
52. Id. at IV.B.
53. Fed. R. Evid. 404(a).
54. Brief Amicus Curiae of the WLDF at IV>B. Meritor (No. 84-1979).
55. Id. at IV.C.
56. Fed. R. Evid. 404(a)(3).
57. Brief Amicus Curiae of the WLDF at IV.C. Meritor (No. 84-1979).
58. Id. at IV.D.
59. Id. (quoting I Wigmore on Evidence 92 (3d ed. 1940)).
6o. Id. at IV.D.
6i. Id. at IV.E.
62. Id. (citations omitted).
63. Id. at IV.F.