Hearing on victim's sex history not public

PORTLAND — The Oregon Supreme Court has shot down a request from the defendant in a rape case to open to the public a hearing on his accuser's sexual history, affirming the state's rape shield law.

The secrecy of such hearings prevents those accused of rape from using them as a public forum to embarrass their accusers, the court ruled Thursday.

"Once disclosed in a public hearing, those 'intimate' personal facts, even if irrelevant to the trial, will no longer be private," the justices said in the ruling. "The bell cannot be unrung."

Portland strip club owner Dean MacBale argued in pretrial hearings that his accuser's sexual history is relevant to her accusations. MacBale is accused by a female employee of sexual penetration, sodomy, and two counts of second-degree sexual abuse.

MacBale's case now returns to Clackamas County Circuit Court.

The Oregon Legislature in 1975 deemed certain elements of a rape trial to be irrelevant to the finding of guilt or innocence, including opinion evidence on an accuser's sexual history or the accuser's manner of dress.

Non-opinion evidence of sexual history or manner of dress can be admitted at trial after one of the secret hearings.

That designation differentiates the MacBale case from previous cases challenging other kinds of secret hearings, which were usually brought by news organizations.

"The harm that the Legislature intended to prevent by requiring (a secret) hearing is not the appearance of the victim as a witness, but the 'degrading and embarrassing disclosure of intimate details about (the accuser's) private life,' " the court wrote in the opinion.

MacBale is seeking to enter two elements of his accuser's sexual history into the trial as evidence. In the first one, the accuser shot and wounded a man in 1997, then accused him of rape. She was convicted of assault and weapons charges and was sentenced to more than five years in prison. No rape charges were ultimately filed against the man.

MacBale also wants a jury to hear that an Oregon Department of Corrections investigation found that she had sex with a former food services coordinator at the women's prison where the accuser was serving time.

The food services coordinator was convicted of official misconduct.

A fellow female inmate said she, the accuser and the food services coordinator had "three-way sex" in the prison's meat locker.

MacBale still can have a hearing seeking to enter that information into evidence at trial, but the Supreme Court's ruling means it will not be open to the public.

The Supreme Court likened the rape pretrial hearings to a trial on trade secrets or the invocation of patient-doctor privilege, situations that would result in a loss of privacy or the divulgement of valuable information if they were held in open court.

"Openness could potentially further victimize an already vulnerable witness or complainant and make the 'complete' administration of justice (more) difficult, if not impossible," according to the ruling.

Secret hearings are permitted in Oregon case law, as they are in certain instances in most states, particularly involving a grand jury or jury deliberations.

The court in the MacBale case was instead relying on previous decisions that said hearings cannot be secret if the court is determining guilt or innocence. Court matters such as pretrial hearings don't fall under that definition, the justices wrote.

The justices were careful to limit their finding on secrecy to situations where "confidential or secret information is (involved.)"

The justices also shot down appeals from MacBale on U.S. Constitutional grounds.

It's not a First Amendment violation, they said, because MacBale himself is permitted to attend the trial, and it doesn't violate his Sixth Amendment right to a speedy trial.

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