Is a victim's HIV status ever relevant in a criminal trial? Under what circumstances can such evidence be introduced? An interesting case from the Second Department Tuesday provides some answers - People v Taylor, 2007 NY Slip Op 04149. The case involved a burglary and attempted robbery prosecution against two defendants.
The victim testified that she was sleeping when the defendant and codefendant, both of whom were strangers, entered her room, tied her up, placed a pillow over her head, and demanded money. After she initially denied having any money and was threatened, she admitted that she had seven or eight dollars in her wallet, which she saw the defendant remove. At this point, the attack was interrupted by police officers, who were in the building for an unrelated investigation. The officers had heard the victim crying and calling for help. The officers thus entered the victim's room and saw her hog-tied with an electrical cord and a shoelace, and the codefendant over her with a pillow in his hands. The defendant was by the door with money in his left hand. After a struggle, the defendants were arrested. The officers testified that the victim appeared very scared, and was crying and asking for help.
The defendants presented an interesting defense. The defendant and the codefendant both testified and denied that they had demanded or taken any money from the victim. Rather, they asserted, they were in the victim's building to meet with a person who was helping them find construction work and who introduced them to the victim. The codefendant testified that he and the victim smoked some crack together and were about to engage in consensual bondage-style sexual intercourse when the defendant interrupted and said to the victim, "Yo, didn't you tell my man you HIV positive?" This, the codefendant testified, caused the victim to start "hollering and screaming and crying and everything." The court struck this testimony concerning the victim's HIV status. The codefendant admitted that he was over the victim with a pillow when the police entered, but asserted that he was only attempting to put the pillow under her head to comfort her. The defendant also testified that when he entered the victim's room and saw her about to have sex with the codefendant, he asked her if she had informed him "about her situation." Again, the court struck the testimony concerning the victim's "situation." Initially, the court also precluded the defendant from testifying that he had taken courses and was a counselor for substance abuse and sexually transmitted diseases. However, the court then allowed the defendant to testify that he was a drug abuse counselor and had counseled the victim on prior occasions, and that he had made a "statement" to the victim when he went into her room which caused her to become upset and to curse at him, and to tell him that she knew she couldn't trust him, i.e., that he had breached a confidence.
On appeal, the defendant claimed that he was deprived of his constitutional right to present a defense when the court struck the testimony concerning the victim's HIV status. He argued that testimony concerning the exact nature of the confidentiality he breached was necessary to explain the victim's extreme emotional state when the police arrived, and to establish her bias, hostility, and motive to fabricate criminal charges out of what was in fact a consensual sexual encounter. The defendant failed to preserve this argument for appellate review. Nevertheless, the Second Department went on to state that in any event reversal would not have been warranted.
The Court stated that a trial court may properly exclude evidence of the victim's bias, hostility, or motive to lie when such evidence lacks a good faith basis, is based solely on hearsay, or is too remote or speculative. However, the Court found that the record here did not establish these bases for excluding the evidence. Instead, the Court relied on CPL 60.43, which provides:
Evidence of the victim's sexual conduct, including the past sexual conduct of a deceased victim, may not be admitted in a prosecution for any offense, attempt to commit an offense or conspiracy to commit an offense defined in the penal law unless such evidence is determined by the court to be relevant and admissible in the interests of justice, after an offer of proof by the proponent of such evidence outside the hearing of the jury, or such hearing as the court may require, and a statement by the court of its findings of fact essential to its determination.
The Court noted that the defendant did not seek such a prior determination as to the relevancy and admissibility of the victim's HIV status. In addition, the Court noted that any error was harmless. In this regard, the Court noted that the defendant was able to get before the jury the key aspect of the defense, namely that the victim's highly emotional state when the police entered was the product of her anger and outrage at the defendant's betrayal of a confidence he learned during counseling, which allegedly motivated her to fabricate allegations which resulted in criminal charges. In other words, the victim's HIV status to explain this emotional state was incidental.
What is surprising about the Court's rationale in relying on CPL 60.43, is that CPL 60.43 is addressed to a victim's "sexual conduct." A person's HIV status is not necessarily related to past sexual conduct as HIV can be contracted in other ways, and there was nothing in the proffered testimony to suggest that the victim had contracted HIV through sexual conduct.
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