The following blog entry is written from a defendant’s position as trial approaches. Reviewing this kind of briefing should help potential plaintiffs and clients better understand how parties in personal injury cases present such issues to the court.
(Please note: the names and locations of all parties have been changed to protect the confidentiality of the participants in this sexual harassment case and its proceedings.)
In Rieger, the court found that testimony about a sexual harassment plaintiff’s racy banter, sexual horseplay, and statements concerning prior proposed or planned sexual exploits were subject to exclusion under California Evidence Code section 1106 unless such conduct involved the alleged perpetrator. See id. at 460-467. The Rieger court also noted:
The legislature declared its intent in enacting section 1106 as follows: [I]t is the existing policy of the State of California to ensure that causes of action for…sexual harassment, sexual assault, or sexual battery are given proper meaning. The discovery of sexual aspects of complainant’s [sic] lives, as well as those of their past and current friends and acquaintances, has the clear potential to discourage complaints and to annoy and harass litigants [which] is unnecessary and deplorable. Without protection …, individuals whose intimate lives are unjustifiably and offensively intruded upon might face the … risk of enduring further intrusions into details of their personal lives in discovery, and in open quasi-judicial or judicial proceedings. [ ] … [A] similar state of affairs once confronted victims in criminal prosecutions for rape ….
The Legislature has taken measures to curb those abuses in rape proceedings. It is the intent of the Legislature to take similar measures in sexual harassment … cases. [ ] The Legislature concludes that the use of such evidence of a complainant’s sexual behavior is more often harassing and intimidating than genuinely probative…. (citation omitted). Id. at 460.
The federal courts are in agreement. In Wolak v. Spucci, 217 F.3d 157 (2nd Cir. 2000), a female police officer, Wolak, complained of a hostile environment based on pornographic posters and displays in the workplace. Id. at 158-159. Over objection at trial, the defense attorney asked [Wolak] about two parties at which pornographic videos were shown while she was present, and two or three other occasions on which she watched sexual acts as they were performed. Id. at 159. The appellate court found that the trial court erred in admitting evidence of Wolak’s sexual behavior. In so holding, the court found that [w]hether a sexual advance was welcome, or whether an alleged victim in fact perceived an environment to be sexually offensive, does not turn on the private sexual behavior of the alleged victim.
Even if a woman’s out-of-work sexual experiences were such that she could perhaps be expected to suffer less harm from viewing run of the mill pornographic images displayed in the office, pornography might still alter her status in the workplace, causing injury, regardless of the trauma inflicted by the pornographic images alone. Id. 160-161. See also Burns v. McGregor Electronics Indus., 989 F.2d 959, 962-963 (8th Cir. 1993) (finding that evidence of plaintiff posing nude was not admissible to show that sexual advances were welcome in the work place); Kelly-Zurian v. Wohl Shoe Co., Inc., 22 Cal. App. 4th 397, 411 (1994) (finding the victim’s viewing of adult videos with her spouse was irrelevant). (See Part 4 of 5.)
For more information you are welcome to contact Sacramento personal injury lawyer, Moseley Collins.