The Court of Appeals made a ruling in a sexual assault case that touches on both the admissibility of expert testimony and Colorado’s criminal rape shield law. The latter typically precludes defenses from using information about an accuser’s sexual history as evidence, but in this case, the Court of Appeals decided the defendant should have gotten a hearing for allowing evidence about his accuser’s alleged history of making up sexual assault allegations.
Edmund Marx appealed his convictions of sexual assault on a child and aggravated incest. The accuser claimed Marx had sexually assaulted her multiple times when she was a teenager. On appeal, Marx claimed the La Plata County District Court erred when it allowed an expert witness to testify for the prosecution about various statistics of people who make up allegations of sexual assault.
Marx argued the court also erred by excluding a neighbor’s testimony about the accuser’s truthfulness and by rejecting a request by the defense for an evidentiary hearing under Colorado’s rape shield law to determine the admissibility of evidence about the accuser’s purported history of falsely accusing others of sexual assault.
“The law must weigh the consequences of invading the accuser’s privacy and the related risk that sexual assaults may go unreported if victims fear embarrassment or intimidation,” wrote Judge Lino Lipinsky de Orlov for the Court of Appeals panel. In this case, the panel found the trial court improperly balanced the defendant’s efforts to challenge the truthfulness of the accuser against the prosecutor’s evidence bolstering the accuser’s credibility.