WEBVTT

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<v ->SJC-13461.</v>

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Commonwealth V Eden C Jacques

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<v ->Attorney Daniels.</v>

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<v ->Good morning, and may it please the Court.</v>

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My name is Attorney Josh Daniels,

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and I represent Mr. Jacques in this appeal.

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So my client was denied his constitutional right

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to present his entire defense

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through cross-examination.

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And for that reason, we're asking you to reverse

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for basically three independent reasons.

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The first is that the Barry allegations are

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not sexual within the meaning of the Rape Shield statute.

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And so, the Statute shouldn't have come into play at all.

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The second is that even if that's incorrect,

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the judge still abused his discretion by keeping them out.

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And the final one is the Commonwealth's Closing Argument.

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I'd actually like to start with my second point

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because I feel like that has the most ground

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that needs to be covered.

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So even if the Barry allegations are within the scope

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of the Statute at the threshold, I would say that

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the implicit Constitutional exception to the Statute

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that this court recognized in Joyce would

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still come into play.

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<v ->We've been very narrow in this area with respect</v>

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to Bohannon, Ruffin, and Polk.

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Correct?
<v ->Pardon?</v>

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<v ->We've been very narrow as far as carbon exceptions,</v>

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Constitutional-based exceptions to Rape Shield.

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One is Bohannon, the second is Ruffin,

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and the third is Polk; correct?

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<v ->I don't know exactly what you mean</v>

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by narrow it Justice Gaziano, I think-

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<v ->He's more than broad.</v>

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(everybody laughing)

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<v ->I mean, I guess it depends.</v>

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<v ->And in fact, doesn't Bohannon say it's a narrow exception?</v>

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<v ->I mean, Bohannon says at the end of the opinion,</v>

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"This is not a rape-shield case.

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This is a case about essentially what we now call Mass guide

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to evidence 608.

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And the reason that they said this is not

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a rape-shield case is because this is only

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about allegations.
<v ->It's not about-</v>

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but there's a constitutional overlay to everything.

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<v ->Yep.</v>
<v ->Right.</v>

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And that's what we're talking about,

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the ability, the six-amount ability

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to present the defense.

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<v ->Yep.</v>
<v ->But be that as it may,</v>

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we've had false accusations,

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sexual experience in Bohannon

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and then this confabulation dissociative confabulation

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in Polk; correct?

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<v ->As far as your cases are concerned,</v>

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there's also Baxter from the Appeals Court,

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which I view as sort of in the same vein as Polk.

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<v ->Right, but I'm just focused on these, the SJC cases.</v>

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<v ->Yep.</v>
<v ->So why is it</v>

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that we should expand this to a fourth category

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of consistent allegations?

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<v ->So I don't see it, honestly, as an expansion.</v>

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I think if you, like, as you said,

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there's a constitutional overlay to all of this.

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I think all of these cases ultimately,

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are applying general Constitutional principles

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in interpreting the sweep of the Statute.

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And if you take a step back

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and you look at particularly Baxter, Polk,

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and Ruffin, I think the common thread that runs through all

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of them is that at their core they all deal

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with narrative recycling.

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In two of those cases, they...

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The narrative recycling is probably unintentional

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or unwitting.

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That's the confabulation theory.

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And in Ruffin, looking at the Appeals Court's decision,

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at least, it seems to be intentional narrative recycling.

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The only difference with Ruffin is that in that case,

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part of the relevance came

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from the extraordinary sexual knowledge issue.

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At the same time, this court-

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<v ->That's your term, this narrative, right?</v>

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You're making this up.

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The cases don't say that.

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<v ->I mean, I think that is my gloss on the cases.</v>

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<v ->Okay, so let me ask you something</v>

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on that point, which to drill down.

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Justice Englander said that

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the striking similarities was hyperbolic.

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When I look at or try to match what

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the victim said in the earlier incidences with this case,

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I see a lot of 'em have to do

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with the child's unfortunate circumstances

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in that she has trust in adults.

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She has to share a living room mattress with a relative.

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That's just her unfortunate life circumstance, right?

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<v ->So I think if, first of all,</v>

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the question is

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whether a reasonable jury looking at these two narratives,

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side by side could, draw a rational inference of recycling.

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And I get that from Joyce and Alt,

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and an epiphany I had yesterday is

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this is essentially a conditional relevance issue.

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So I think

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if the narrative is in fact recycled, then-

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<v ->But conditional relevance isn't good for you</v>

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because we go to the judge's discretion on that, right?

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<v ->Right, but the lens through which you view the,</v>

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through which the judge is supposed to view to exercise

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that discretion is essentially in the light

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most favorable to the proponent.

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<v ->So tell me why Justice Englander was wrong.</v>

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<v ->So I think he's wrong</v>

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because he's viewing the evidence,

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and or for the Court.

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The Court is making the judgment

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of whether they are convinced

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by this inference of recycling.

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And the question needs to be

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whether a reasonable jury could have this available

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as a rational inference.

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And I think it is a rational inference,

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particularly, if you look at the number of details

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and how specific they are side by side in both

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of the narratives.

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It may not be the only inference available,

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but certainly, a jury would not be irrational

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or taking leave of it census.

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<v ->For the striking similarities, could you go over those?</v>

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<v ->Right, of those facts?</v>
<v ->Yeah.</v>

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<v ->So you have, I think the best example</v>

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for me is just looking

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at the narrative details

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in the two living room episodes involving my client

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and Mr. Barry.

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So it's not just the abusive behavior that is the same,

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it's also the setting both, that's-

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<v Judge>Where she lives.</v>

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<v ->I mean, she wasn't living at Normandy Street,</v>

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she was visiting at Normandy Street.

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That's right, that's where she sleeps in the living room.

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<v ->Right, but I mean, the fact,</v>

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and it's also the fact that

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like both sisters are involved. I

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<v ->I'm gonna interrupt you.</v>

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Continue for Justice Kafker, the litany of similarities.

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<v ->Yeah, so you have the same two sisters</v>

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in the same setting,

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sleeping in the living room

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in these two different apartments.

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There's the same alleged abusive behavior getting

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into bed and rubbing their legs.

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And the same, basically, the same words uttered in response.

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<v ->Okay, let's...</v>

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Before you get to the words, those are just so common.

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The first part of this, I mean, you know,

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you and I, we've read hundreds and hundreds of these cases.

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Those two don't get us into anything distinctive, do they?

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I think rubbing the legs and sleeping in the living room,

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we've got, that's just...

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<v ->I think when you put them all together,</v>

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it comes up.
<v ->I don't think this-</v>

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<v ->I'm cutting you off there</v>

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'cause I don't find those distinctive.

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Tell me what, point to something distinctive.

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'cause that would be very helpful.

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Something that I don't see in a hundred of these cases.

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<v ->So in both episodes,</v>

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the response that this provokes is

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basically, the same words uttered in response in one story.

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I think Denise, the pseudonym is the person who,

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that's who she attributes it to herself.

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And the other story, she attributes it to her sister,

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who I'm calling Jane.

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And it's something to the effect of, "We're going

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to have a problem if you don't stop."

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And I think the whole is basically

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more than the sum of its parts.

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And when you put all of this together,

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<v ->Say, "We are going to have a problem if you don't stop."</v>

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<v ->Yeah.</v>
<v ->Meaning,</v>

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the children are gonna be punished if-

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<v ->No, he, the assailant is going</v>

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to have a problem if he does not stop rubbing their legs

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or whatever he's alleged to be doing.

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<v ->Again, isn't that standard?</v>

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And that may be-
<v ->Hundreds of cases,</v>

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<v ->And that may be an argument</v>

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that the Commonwealth gets to make to the jury

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for why they should not find that this is recycled.

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But I don't think that's a reason

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to keep it away from the jury.

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I see that as basically, just a factual dispute,

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which if you look at Joyce, if you look at Footnote 10

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of Baxter, the fact that this conclusion would be contested,

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that a different interpretation

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of the evidence might be available is not a reason

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to keep the evidence away from the jury.

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<v ->On the facts is I tried to line them up, reading</v>

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the briefs as I see a lot of them, they have to do

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with unfortunate circumstances,

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including the persons walking around

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with their penis exposed.

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That's what's gonna happen in a rape

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and where the sisters live, where they sleep, et cetera.

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But the ones I found similar in,

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are the victim was told by an adult that the defendant

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and Barry were both sneaky and that Barry

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and defendant offered her $20 to dance or have sex.

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Are those two facts, am I getting that wrong?

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Are those two facts the similarities?

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<v ->Yes, they're part of what is...</v>

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They're part of the,

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what I say are the details that are recycled

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between the two narratives.
<v ->Okay.</v>

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<v ->And again, this is, you know,</v>

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you look at it in the light most favorable to the proponent.

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The question on is, you know,

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could a rational jury find

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that these narratives are recycled?

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<v ->So how's it a light most favorable</v>

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'cause it's an exception to the Rape Shield Act.

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<v ->I don't agree with your first argument,</v>

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by the way, as you could probably tell,

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but how's...

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This has to be an exception to the Rape Shield Act, right?

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<v ->Right, but I mean, if you look at the analysis in Joyce,</v>

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you're certain, you have to...

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You're assuming that the jury would believe this evidence.

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And basically, you're looking at whether,

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what a rational conclusion that could follow

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from that would bear on whether it has any rational tendency

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to bear on the accuser's credibility.

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And it doesn't matter if there might be a different view

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of the evidence that that is something

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for the jury ultimately to resolve.

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It's not a reason to keep it away from the jury.

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And I think-
<v ->So, just articulate</v>

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the theory for me.

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So your theory is that previously,

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this same victim was victimized by Mr. Barry

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and therefore, she's what,

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making this up the second time around.

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<v ->She drew on her earlier experience</v>

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with Mr. Barry to fabricate the-

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<v ->So she drew-</v>
<v ->Her initial allegations</v>

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against my client.
<v ->On the undisputed experience</v>

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with Mr. Barry,

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the actual victimization of herself

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by Mr. Barry in order

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to fabricate something against your client.

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00:11:18.720 --> 00:11:20.220
<v ->Yes.</v>
<v ->Okay.</v>

255
00:11:20.220 --> 00:11:22.950
<v ->And I think that's very similar to Ruffin,</v>

256
00:11:22.950 --> 00:11:24.360
where the theory, again-

257
00:11:24.360 --> 00:11:26.700
<v ->Ruffin, didn't that involve the young victim?</v>

258
00:11:26.700 --> 00:11:28.197
<v ->It did, that's the only difference.</v>

259
00:11:28.197 --> 00:11:29.030
<v ->It was crucial.</v>

260
00:11:29.030 --> 00:11:32.520
Well, and it was crucial to show why

261
00:11:32.520 --> 00:11:36.720
that young victim would know of, you know,

262
00:11:36.720 --> 00:11:38.550
this kind of sexual misconduct.

263
00:11:38.550 --> 00:11:41.310
<v ->Right, my point about Ruffin is at their core,</v>

264
00:11:41.310 --> 00:11:42.720
the theory is the same,

265
00:11:42.720 --> 00:11:45.510
which is the victim drew on her earlier experience

266
00:11:45.510 --> 00:11:48.870
of victimization to fabricate a new allegation

267
00:11:48.870 --> 00:11:51.330
that is the same in both cases.

268
00:11:51.330 --> 00:11:56.330
<v ->Your purpose is to show that the victim here is lying,</v>

269
00:11:56.880 --> 00:11:59.220
whereas for Ruffin, the purpose was

270
00:11:59.220 --> 00:12:02.190
to show why the victim would have had experience

271
00:12:02.190 --> 00:12:05.550
in these sexual matters because she was so young otherwise.

272
00:12:05.550 --> 00:12:08.550
<v ->I mean, I think, yes,</v>

273
00:12:08.550 --> 00:12:12.210
the only sort of clarification is that I think in Ruffin,

274
00:12:12.210 --> 00:12:14.880
as I read the Appeals Court's decision in that case,

275
00:12:14.880 --> 00:12:18.150
that this court then flipped, the theory

276
00:12:18.150 --> 00:12:21.060
in that case was also, that the victim was lying.

277
00:12:21.060 --> 00:12:23.070
But it was to,

278
00:12:23.070 --> 00:12:26.730
but like part of the other reason why this was

279
00:12:26.730 --> 00:12:27.930
so important to the defense

280
00:12:27.930 --> 00:12:32.040
and Ruffin was to explain how she could have the wherewithal

281
00:12:32.040 --> 00:12:35.910
to fabricate these details given her young age.

282
00:12:35.910 --> 00:12:37.470
But this court, again,

283
00:12:37.470 --> 00:12:39.570
explicitly did not limit its reasoning

284
00:12:39.570 --> 00:12:41.880
to that particular fact pattern.

285
00:12:41.880 --> 00:12:43.260
It said it might be.

286
00:12:43.260 --> 00:12:45.750
There might be cases in which it could be relevant

287
00:12:45.750 --> 00:12:46.770
for other purposes.

288
00:12:46.770 --> 00:12:49.500
The defendant will need to show what that relevance is.

289
00:12:49.500 --> 00:12:53.130
I think here, if the jury accepts

290
00:12:53.130 --> 00:12:56.940
that this is recycled narratives, then I think

291
00:12:56.940 --> 00:12:59.730
that self-evidently bears on the credibility

292
00:12:59.730 --> 00:13:01.380
of the accusation.

293
00:13:01.380 --> 00:13:03.090
And the only other-

294
00:13:03.090 --> 00:13:05.670
<v ->In the trial judge, in making the assessment</v>

295
00:13:05.670 --> 00:13:09.300
of whether or not to allow the cross-examination

296
00:13:09.300 --> 00:13:12.990
that you wanted to do to continue, does the trial judge have

297
00:13:12.990 --> 00:13:16.200
to balance the policies of the Rape Shield

298
00:13:16.200 --> 00:13:18.390
against your client's constitutional rights

299
00:13:18.390 --> 00:13:19.560
to present a defense?

300
00:13:19.560 --> 00:13:21.150
Or is it automatic

301
00:13:21.150 --> 00:13:23.610
that your client then gets to present the defense?

302
00:13:23.610 --> 00:13:25.323
<v ->So he has to do that.</v>

303
00:13:26.233 --> 00:13:28.710
He has to balance the policies of the Rape Shield Statute.

304
00:13:28.710 --> 00:13:29.543
<v ->So tell me why</v>

305
00:13:31.560 --> 00:13:34.320
the trial judge abused his discretion

306
00:13:34.320 --> 00:13:35.820
and the balance that he performed.

307
00:13:35.820 --> 00:13:39.600
<v ->Sure, so I think the biggest problem with,</v>

308
00:13:39.600 --> 00:13:42.420
there are two problems that I see with the judge's decision.

309
00:13:42.420 --> 00:13:46.650
One is it's not clear to me that his reasoning

310
00:13:46.650 --> 00:13:48.570
actually engages in that balancing.

311
00:13:48.570 --> 00:13:49.650
His primary reason

312
00:13:49.650 --> 00:13:52.830
for keeping this out is I haven't seen a case exactly

313
00:13:52.830 --> 00:13:55.260
like this before, so I'm not gonna do it.

314
00:13:55.260 --> 00:13:56.103
And I-

315
00:13:57.060 --> 00:13:59.130
<v ->He's right because we...</v>

316
00:13:59.130 --> 00:14:00.600
<v ->Right, but-</v>
<v ->Right, because he,</v>

317
00:14:00.600 --> 00:14:02.400
<v ->But every case is the...</v>

318
00:14:02.400 --> 00:14:04.770
Every case that recognizes this exception is

319
00:14:04.770 --> 00:14:06.970
also the first time in which that exception is recognized.

320
00:14:06.970 --> 00:14:09.117
<v ->And so-</v>
<v ->But in the context of,</v>

321
00:14:09.117 --> 00:14:11.190
and I know you don't agree with this,

322
00:14:11.190 --> 00:14:14.880
but in the context of these exceptions being narrowly drawn

323
00:14:14.880 --> 00:14:16.380
and each of the cases suggesting

324
00:14:16.380 --> 00:14:20.220
that they're narrow exceptions isn't, how can we say

325
00:14:20.220 --> 00:14:22.320
that the trial judge abused his discretion

326
00:14:22.320 --> 00:14:23.760
on that particular reasoning?

327
00:14:23.760 --> 00:14:26.220
<v ->I mean, first of all, I don't, looking</v>

328
00:14:26.220 --> 00:14:28.710
aside from Bohannon, which is not a Rape-Shield case,

329
00:14:28.710 --> 00:14:32.970
I don't know that any of the cases expressly say,

330
00:14:32.970 --> 00:14:35.160
you know, are this, this is for...

331
00:14:35.160 --> 00:14:37.950
This applies only in this sort of situation

332
00:14:37.950 --> 00:14:42.610
or characterizes it as a narrow fact bound that

333
00:14:42.610 --> 00:14:45.240
as an exception, that fact bound in the same way.

334
00:14:45.240 --> 00:14:47.280
<v ->What was the second reason that you suggest</v>

335
00:14:47.280 --> 00:14:49.050
that the judge abused his discretion?

336
00:14:49.050 --> 00:14:51.360
<v ->So, if I could guild the lily on my first reason,</v>

337
00:14:51.360 --> 00:14:53.850
I actually see a lot of parallel between

338
00:14:53.850 --> 00:14:56.160
what the judge here said, said here,

339
00:14:56.160 --> 00:14:58.560
and the reasoning of the judge in Baxter,

340
00:14:58.560 --> 00:15:00.540
which the Appeals Court overruled, right?

341
00:15:00.540 --> 00:15:03.240
So that, there is that parallel there.

342
00:15:03.240 --> 00:15:05.310
And so, to the extent that Baxter is good law

343
00:15:05.310 --> 00:15:10.230
and no one has questioned Baxter's goodness as law,

344
00:15:10.230 --> 00:15:12.453
I think that's a way there.

345
00:15:14.400 --> 00:15:17.610
The other point I would make is even

346
00:15:17.610 --> 00:15:20.580
like looking at the policies of the Rape Shield statute

347
00:15:20.580 --> 00:15:21.870
and looking at, you know,

348
00:15:21.870 --> 00:15:24.630
every conceivable reason you have for keeping this out.

349
00:15:24.630 --> 00:15:28.200
I think the only one that actually,

350
00:15:28.200 --> 00:15:32.550
even arguably points toward exclusion is the concern,

351
00:15:32.550 --> 00:15:36.180
which is an important one about potential trauma

352
00:15:36.180 --> 00:15:37.860
or retraumatization of the victim.

353
00:15:37.860 --> 00:15:40.140
As I say in my reply brief,

354
00:15:40.140 --> 00:15:42.240
that can't be the entire analysis because

355
00:15:42.240 --> 00:15:45.960
otherwise, the Constitution is going to lose every time.

356
00:15:45.960 --> 00:15:48.330
And like that concern is present in every single case.

357
00:15:48.330 --> 00:15:51.570
So if that alone is enough to keep it out, then a bunch

358
00:15:51.570 --> 00:15:52.833
of your cases are wrong.

359
00:15:54.510 --> 00:15:57.450
The other reasons, conceivable reasons

360
00:15:57.450 --> 00:16:00.510
to keep it out might be, you know, this is

361
00:16:00.510 --> 00:16:01.770
for an improper purpose.

362
00:16:01.770 --> 00:16:03.870
Everyone I think agrees, including the judge

363
00:16:03.870 --> 00:16:06.120
that this was not for any purpose.

364
00:16:06.120 --> 00:16:06.960
It was not being offered

365
00:16:06.960 --> 00:16:09.600
for any purpose prohibited by the Statute.

366
00:16:09.600 --> 00:16:11.910
Look at, there are at least eight cases

367
00:16:11.910 --> 00:16:12.990
between this court

368
00:16:12.990 --> 00:16:15.420
and the Appeals Court that where

369
00:16:15.420 --> 00:16:18.900
that purpose is absent, have been reversed on these grounds.

370
00:16:18.900 --> 00:16:20.940
And the cases going the other way, I think,

371
00:16:20.940 --> 00:16:25.620
are all distinguishable on for various reasons.

372
00:16:25.620 --> 00:16:29.340
And then the only other thing putting to one side,

373
00:16:29.340 --> 00:16:31.800
I think the Commonwealth's post hoc rationalization about

374
00:16:31.800 --> 00:16:34.710
the effect on the trial, which the judge said nothing about.

375
00:16:34.710 --> 00:16:37.770
And if it were at all of concern to him,

376
00:16:37.770 --> 00:16:40.290
he would've said something about it.

377
00:16:40.290 --> 00:16:41.790
The only other reason effect-

378
00:16:41.790 --> 00:16:43.410
<v ->On the trial as far as confusion.</v>

379
00:16:43.410 --> 00:16:44.400
<v ->Yes.</v>
<v ->Okay.</v>

380
00:16:44.400 --> 00:16:45.690
<v ->The only other reason that</v>

381
00:16:45.690 --> 00:16:49.800
the judge did point toward is this idea

382
00:16:49.800 --> 00:16:53.610
that adequate cross-examination had already been allowed,

383
00:16:53.610 --> 00:16:57.060
which I think the judge misread the way

384
00:16:57.060 --> 00:16:59.010
that the cases actually look at that, which is,

385
00:16:59.010 --> 00:17:00.180
if you look at Stockham,

386
00:17:00.180 --> 00:17:01.620
what this court said there is you need

387
00:17:01.620 --> 00:17:03.000
to consider every separate

388
00:17:03.000 --> 00:17:05.460
and discreet basis for impeachment.

389
00:17:05.460 --> 00:17:09.450
And you're, you, it's...

390
00:17:09.450 --> 00:17:11.250
How did I put it in my notes?

391
00:17:11.250 --> 00:17:13.830
It, the question is whether the evidence was needed

392
00:17:13.830 --> 00:17:18.360
to explore or air the defendant's chosen theory of defense,

393
00:17:18.360 --> 00:17:21.120
not a more watered-down or generic one.

394
00:17:21.120 --> 00:17:23.370
And so the question is whether

395
00:17:23.370 --> 00:17:25.560
these allegations were essential to the theory

396
00:17:25.560 --> 00:17:27.630
that the defendant wanted to pursue.

397
00:17:27.630 --> 00:17:29.730
You cannot air a recycling theory

398
00:17:29.730 --> 00:17:31.980
unless you can compare the allegations

399
00:17:31.980 --> 00:17:34.800
and let the jury see how they might

400
00:17:34.800 --> 00:17:37.140
or might not be recycled.

401
00:17:37.140 --> 00:17:40.500
And so I think there's very little reason

402
00:17:40.500 --> 00:17:42.780
actually pointing to exclusion.

403
00:17:42.780 --> 00:17:46.050
And you know, I think there's, there...

404
00:17:46.050 --> 00:17:47.070
The Court may disagree,

405
00:17:47.070 --> 00:17:49.740
but there's at least a rational inference

406
00:17:49.740 --> 00:17:52.170
that justifies sending this to the jury.

407
00:17:52.170 --> 00:17:53.220
And for those reasons,

408
00:17:53.220 --> 00:17:55.770
I think the judge's Rape-Shield ruling is wrong

409
00:17:55.770 --> 00:17:57.720
and can't be supported.

410
00:17:57.720 --> 00:17:59.940
I'm happy to take questions about my other points,

411
00:17:59.940 --> 00:18:03.045
but I'm not overstaying my welcome.

412
00:18:03.045 --> 00:18:05.545
<v ->Okay, thank you.</v>
<v ->Thank you.</v>

413
00:18:08.070 --> 00:18:09.453
<v ->Okay, Attorney Doherty.</v>

414
00:18:12.141 --> 00:18:14.891
(paper rustling)

415
00:18:21.000 --> 00:18:22.710
<v ->Chief Justice Budd, may I please the Court?</v>

416
00:18:22.710 --> 00:18:24.210
Andrew Doherty for the Commonwealth,

417
00:18:24.210 --> 00:18:26.790
with me is Assistant District Attorney Kyle Siconolfi,

418
00:18:26.790 --> 00:18:28.767
who was the trial attorney in this case,

419
00:18:28.767 --> 00:18:33.090
and also to acknowledge Jacquelyn Lamont, who is our Chief

420
00:18:33.090 --> 00:18:35.910
of Forensic Examiners, who's watching as well,

421
00:18:35.910 --> 00:18:37.890
who conducted the forensic examinations

422
00:18:37.890 --> 00:18:39.290
of the victims in this case.

423
00:18:40.560 --> 00:18:45.330
This court has always tread very carefully when it comes

424
00:18:45.330 --> 00:18:50.250
to the Rape Shield, and not only with the Rape Shield,

425
00:18:50.250 --> 00:18:54.030
but in all cases involving rape victims.

426
00:18:54.030 --> 00:18:56.430
This court has always acknowledged

427
00:18:56.430 --> 00:18:58.230
that there is a third factor in play,

428
00:18:58.230 --> 00:19:02.070
which is in jury's deliberation, which is society's innate

429
00:19:02.070 --> 00:19:05.310
and ongoing misogynistic skepticism

430
00:19:05.310 --> 00:19:07.390
about a rape victim's testimony

431
00:19:08.400 --> 00:19:10.710
that is expressed in the Rape Shield

432
00:19:10.710 --> 00:19:14.880
as it carefully discusses things like Ruffin,

433
00:19:14.880 --> 00:19:16.830
where it isn't simply that it's relevant,

434
00:19:16.830 --> 00:19:19.350
it's that it's dealing with the assumption

435
00:19:19.350 --> 00:19:21.780
that society has it

436
00:19:21.780 --> 00:19:24.420
with respect to chastity norms, the fact

437
00:19:24.420 --> 00:19:26.550
that a child wouldn't know of these terms

438
00:19:26.550 --> 00:19:28.860
unless she'd previously been raped.

439
00:19:28.860 --> 00:19:32.460
<v ->Given that as we look at the continuum</v>

440
00:19:32.460 --> 00:19:35.463
of these cases in Bohannon, Ruffin, and Polk.

441
00:19:37.200 --> 00:19:40.290
Now we have presented to us a fourth category

442
00:19:40.290 --> 00:19:42.240
that have recycled allegations.

443
00:19:42.240 --> 00:19:44.280
<v ->Correct.</v>
<v ->As I look through,</v>

444
00:19:44.280 --> 00:19:45.750
read the Appeals Court decision

445
00:19:45.750 --> 00:19:50.280
and look through the allegations, I get the similarities,

446
00:19:50.280 --> 00:19:53.790
which are, as I've said in the prior question,

447
00:19:53.790 --> 00:19:55.660
and that are a product

448
00:19:56.517 --> 00:19:58.110
of the unfortunate circumstances

449
00:19:58.110 --> 00:20:00.360
this victim found herself in.

450
00:20:00.360 --> 00:20:02.400
But it seems striking to me

451
00:20:02.400 --> 00:20:05.850
that in the prior allegations against Barry,

452
00:20:05.850 --> 00:20:09.727
isn't the victim told, an adult told the victim,

453
00:20:09.727 --> 00:20:11.790
"Be careful this person's sneaky," using

454
00:20:11.790 --> 00:20:14.160
that one particular word.

455
00:20:14.160 --> 00:20:16.830
And then that, in more striking, that Barry

456
00:20:16.830 --> 00:20:19.050
and the defendant both offered her $20,

457
00:20:19.050 --> 00:20:23.520
the exact same amount to both dance or have sex.

458
00:20:23.520 --> 00:20:24.540
<v ->Sure, so it-</v>

459
00:20:24.540 --> 00:20:27.865
<v ->To me, to be striking, so please tell me why they're not,</v>

460
00:20:27.865 --> 00:20:29.430
and why they're not admissible

461
00:20:29.430 --> 00:20:31.080
<v ->No, I under I understand the question.</v>

462
00:20:31.080 --> 00:20:32.340
The first thing I would say is you have

463
00:20:32.340 --> 00:20:35.640
a teenager using colloquialisms to describe

464
00:20:35.640 --> 00:20:38.310
how she received warning from some concerned adult

465
00:20:38.310 --> 00:20:40.200
in the house, and she used the word sneaky.

466
00:20:40.200 --> 00:20:44.760
If we start going down a road where we're concerned about

467
00:20:44.760 --> 00:20:47.310
the language that a rape victim is using,

468
00:20:47.310 --> 00:20:49.830
we're opening the door to the kinds of concerns

469
00:20:49.830 --> 00:20:51.810
that this court has expressed.

470
00:20:51.810 --> 00:20:55.230
It most recently, I'd say in the dissent in Alvarez,

471
00:20:55.230 --> 00:20:58.530
but also in maintaining

472
00:20:58.530 --> 00:21:01.410
the first complaint doctrine in King.

473
00:21:01.410 --> 00:21:05.230
That when we start, one guessing how weird it is

474
00:21:06.360 --> 00:21:09.030
the language that a victim is using, which is really

475
00:21:09.030 --> 00:21:10.830
what the defense's argument is.

476
00:21:10.830 --> 00:21:12.823
Isn't it weird that she was raped twice, isn't it weird?

477
00:21:12.823 --> 00:21:14.520
<v ->Well, it's unique.</v>

478
00:21:14.520 --> 00:21:17.280
It's unique to say that the same, you know,

479
00:21:17.280 --> 00:21:19.680
or similar, another aunt told me it was sneaky.

480
00:21:19.680 --> 00:21:21.030
He was sneaky.
<v ->Right.</v>

481
00:21:21.030 --> 00:21:22.350
<v ->And not, you know,</v>

482
00:21:22.350 --> 00:21:23.880
and that, you know, maybe like creepy,

483
00:21:23.880 --> 00:21:25.139
I think people use that a lot now.

484
00:21:25.139 --> 00:21:26.490
<v ->Sure.</v>

485
00:21:26.490 --> 00:21:29.643
But the $20 does seem a little unique.

486
00:21:30.630 --> 00:21:33.078
<v ->I beg to differ.</v>
<v ->Okay.</v>

487
00:21:33.078 --> 00:21:35.070
<v ->In-</v>
<v ->$4 to dance or have sex.</v>

488
00:21:35.070 --> 00:21:37.530
<v ->It is offering rewards or inducements in order</v>

489
00:21:37.530 --> 00:21:38.414
to do something that pushes that boundary.

490
00:21:38.414 --> 00:21:40.530
<v ->Specifically the same amount,</v>

491
00:21:40.530 --> 00:21:43.950
for the same reward, for the same act.

492
00:21:43.950 --> 00:21:46.920
<v ->If it was, you know, $15 and 30 cents</v>

493
00:21:46.920 --> 00:21:48.660
if it was some distinct number

494
00:21:48.660 --> 00:21:51.533
that stood out on its own, I mean, I don't know that 20,

495
00:21:51.533 --> 00:21:53.760
you know, saying I'll give you 20 bucks

496
00:21:53.760 --> 00:21:55.830
for a dance versus I'll give you 10 bucks for a dance.

497
00:21:55.830 --> 00:21:57.240
Makes all that much of a difference.

498
00:21:57.240 --> 00:21:59.317
What matters here is you have a child saying,

499
00:21:59.317 --> 00:22:00.360
"You offered me money to dance.

500
00:22:00.360 --> 00:22:02.280
<v ->But isn't that something that you would argue then</v>

501
00:22:02.280 --> 00:22:03.213
on redirect?

502
00:22:04.140 --> 00:22:07.350
<v ->It...</v>
<v ->As opposed to not allowing</v>

503
00:22:07.350 --> 00:22:09.240
the defendant to have this defense, which is Constitutional.

504
00:22:09.240 --> 00:22:13.140
<v ->So isn't it weird that, so I would say this.</v>

505
00:22:13.140 --> 00:22:15.543
Isn't it weird that a,

506
00:22:16.560 --> 00:22:18.660
we're talking about Eden Jacque's rape case,

507
00:22:18.660 --> 00:22:22.050
but let's also talk about the fact that something

508
00:22:22.050 --> 00:22:23.490
that wasn't brought up in direct,

509
00:22:23.490 --> 00:22:26.010
but rather in cross-examination,

510
00:22:26.010 --> 00:22:29.490
didn't you offer $20 for this dance?

511
00:22:29.490 --> 00:22:31.860
We're now dealing with minutiae, right?

512
00:22:31.860 --> 00:22:33.420
Isn't it strange that-

513
00:22:33.420 --> 00:22:34.980
<v ->But isn't that what we do when we look</v>

514
00:22:34.980 --> 00:22:37.020
at bad act evidence in general?

515
00:22:37.020 --> 00:22:40.560
Like suppose there's a robbery of a convenience store

516
00:22:40.560 --> 00:22:44.280
and you as a prosecutor want to get in Bad Act evidence.

517
00:22:44.280 --> 00:22:47.130
You would say there's some signature conduct that the person

518
00:22:47.130 --> 00:22:50.490
that robbed the convenience store on one day

519
00:22:50.490 --> 00:22:53.640
and then robbed it five days later was wearing a, you know,

520
00:22:53.640 --> 00:22:57.060
a clown mask or something that was unique, right?

521
00:22:57.060 --> 00:22:59.550
The minutiae, the uniqueness is

522
00:22:59.550 --> 00:23:02.310
what makes it admissible in many cases.

523
00:23:02.310 --> 00:23:04.233
<v ->So, I guess I'll say two things.</v>

524
00:23:05.460 --> 00:23:07.110
The first thing I would say is,

525
00:23:07.110 --> 00:23:11.670
I don't think it's the right way to go to compare

526
00:23:11.670 --> 00:23:14.850
a child rape case to any other kind of case

527
00:23:14.850 --> 00:23:16.710
because society treats it differently

528
00:23:16.710 --> 00:23:18.600
and this court is acknowledged as a different thing.

529
00:23:18.600 --> 00:23:20.610
And there are different rules of rape cases.

530
00:23:20.610 --> 00:23:22.410
We're allowed to put an expert testimony

531
00:23:22.410 --> 00:23:24.930
about delayed disclosure.

532
00:23:24.930 --> 00:23:27.150
We're allowed to test, bring in expert testimony

533
00:23:27.150 --> 00:23:31.320
to talk about anatomy confusion where we...

534
00:23:31.320 --> 00:23:34.410
So I don't think that that that's the right parallel

535
00:23:34.410 --> 00:23:38.073
to track here if it's pattern evidence for a defendant,

536
00:23:39.440 --> 00:23:42.300
do we get to put that in, I think instead,

537
00:23:42.300 --> 00:23:46.920
thinking about it also in light of the stigma

538
00:23:46.920 --> 00:23:50.880
and the social issues, taboos, et cetera that go

539
00:23:50.880 --> 00:23:53.070
with rape victims and rape skepticism,

540
00:23:53.070 --> 00:23:55.110
society's very skeptical enough

541
00:23:55.110 --> 00:24:00.110
to add this extraordinarily small thing that is,

542
00:24:01.590 --> 00:24:03.480
otherwise, entirely different, right?

543
00:24:03.480 --> 00:24:05.430
There's no other relevant piece of information

544
00:24:05.430 --> 00:24:07.350
that you've been able to identify

545
00:24:07.350 --> 00:24:09.300
despite having two complete say-

546
00:24:09.300 --> 00:24:13.320
<v ->I could understand if we were confronted with a case</v>

547
00:24:13.320 --> 00:24:15.570
where there was a prior allegation

548
00:24:15.570 --> 00:24:19.020
against Barry that was generalized, I mean clearly,

549
00:24:19.020 --> 00:24:20.820
protected by the Rape Shield Statute.

550
00:24:20.820 --> 00:24:23.880
<v ->Well, maybe then I, this because I did focus only</v>

551
00:24:23.880 --> 00:24:25.170
on child rape.

552
00:24:25.170 --> 00:24:27.690
I mean, you've seen that what I could find

553
00:24:27.690 --> 00:24:28.893
on child rape.

554
00:24:31.080 --> 00:24:34.582
Making Rape Shield exception, where it's exceptional, right?

555
00:24:34.582 --> 00:24:36.330
It isn't just gonna apply to child rape.

556
00:24:36.330 --> 00:24:37.410
And the next case,

557
00:24:37.410 --> 00:24:40.320
I would then think about is a prostitute that's been raped

558
00:24:40.320 --> 00:24:41.910
by two different Johns.
<v ->Right-</v>

559
00:24:41.910 --> 00:24:44.580
<v ->Charges $20 for a-</v>

560
00:24:44.580 --> 00:24:46.110
<v Judge>That would be similar to the victim,</v>

561
00:24:46.110 --> 00:24:47.760
in this case, sleeping in her living room,

562
00:24:47.760 --> 00:24:50.490
that's just the circumstances of the situation,

563
00:24:50.490 --> 00:24:51.323
<v ->Right, and-</v>

564
00:24:51.323 --> 00:24:52.950
<v ->I would say, I got in the car,</v>

565
00:24:52.950 --> 00:24:54.900
I was offered $50, whatever.

566
00:24:54.900 --> 00:24:57.090
That's what, that there's the sameness in those.

567
00:24:57.090 --> 00:24:58.830
<v ->And where both of these...</v>

568
00:24:58.830 --> 00:25:00.870
Where this victim was offered a reward,

569
00:25:00.870 --> 00:25:03.450
which we know is a common grooming technique in order

570
00:25:03.450 --> 00:25:06.000
to do something sexual, now we're latching on the fact

571
00:25:06.000 --> 00:25:08.190
that the dollar amount that was associated with that.

572
00:25:08.190 --> 00:25:10.800
I, it-

573
00:25:10.800 --> 00:25:13.080
<v ->I don't think it's that easy.</v>

574
00:25:13.080 --> 00:25:15.870
So you, I would hope that you would, could see

575
00:25:15.870 --> 00:25:18.390
that this was a pretty strong case

576
00:25:18.390 --> 00:25:20.820
for the Commonwealth against Mr. Jacques.

577
00:25:20.820 --> 00:25:25.560
And so, in the context of,

578
00:25:25.560 --> 00:25:28.410
I don't think the Commonwealth's making the point that

579
00:25:28.410 --> 00:25:33.030
the statutory guarantee would make

580
00:25:33.030 --> 00:25:35.553
the Constitutional guarantee yield.

581
00:25:37.064 --> 00:25:39.930
He has a right to present a defense.

582
00:25:39.930 --> 00:25:42.660
And in the case where the Commonwealth has this,

583
00:25:42.660 --> 00:25:47.430
all of this other evidence, this is what he has, right?

584
00:25:47.430 --> 00:25:50.730
So this is the impeachment of the complainant

585
00:25:50.730 --> 00:25:54.480
with the sameness of whatever you claim is

586
00:25:54.480 --> 00:25:58.350
just two out of four things against with Mr. Barry.

587
00:25:58.350 --> 00:26:00.810
It's what he has.

588
00:26:00.810 --> 00:26:05.520
So, tell me why his constitutional right

589
00:26:05.520 --> 00:26:08.910
to present his defense should yield

590
00:26:08.910 --> 00:26:11.523
to this statutory-

591
00:26:12.360 --> 00:26:13.320
<v ->Sure.</v>
<v ->Rape Shield.</v>

592
00:26:13.320 --> 00:26:15.900
<v ->So I'm not relying, I agree</v>

593
00:26:15.900 --> 00:26:17.880
with you that he's always gonna have

594
00:26:17.880 --> 00:26:20.163
a constitutional right to present,

595
00:26:21.330 --> 00:26:22.770
to cross-examine witnesses

596
00:26:22.770 --> 00:26:25.110
and impeach, you know, but there are,

597
00:26:25.110 --> 00:26:27.720
and that's going to always trump

598
00:26:27.720 --> 00:26:29.283
the Rape Shield Statute.

599
00:26:30.630 --> 00:26:33.330
Where it gets different is twofold.

600
00:26:33.330 --> 00:26:38.280
Number one, that the judge,

601
00:26:38.280 --> 00:26:40.170
we trust judges with the discretion

602
00:26:40.170 --> 00:26:43.170
to properly limit cross-examination

603
00:26:43.170 --> 00:26:44.860
to things that are probative

604
00:26:45.990 --> 00:26:48.600
and are not unduly prejudicial.

605
00:26:48.600 --> 00:26:51.870
And that wouldn't otherwise confuse or distract the jury

606
00:26:51.870 --> 00:26:53.970
or unnecessarily prolong the trial.

607
00:26:53.970 --> 00:26:56.850
<v ->But that's a 403 argument.</v>

608
00:26:56.850 --> 00:26:58.860
That's not the argument

609
00:26:58.860 --> 00:27:01.320
on the Rape Shield and the exception,

610
00:27:01.320 --> 00:27:04.560
<v ->Well, respectfully, well, not respect, (chuckles)</v>

611
00:27:04.560 --> 00:27:05.430
of course, respectfully,

612
00:27:05.430 --> 00:27:08.700
but I, what-
(everybody laughing)

613
00:27:08.700 --> 00:27:09.720
My argument, Judge,

614
00:27:09.720 --> 00:27:11.790
is when you look at whether

615
00:27:11.790 --> 00:27:13.740
or not the judge made the wrong call about

616
00:27:13.740 --> 00:27:16.800
this being relevant enough to have at trial,

617
00:27:16.800 --> 00:27:18.810
look at what the judge did, right?

618
00:27:18.810 --> 00:27:22.350
And look at the, I don't know if it was an hour's worth

619
00:27:22.350 --> 00:27:24.180
of discussion, but there are many,

620
00:27:24.180 --> 00:27:27.390
many pages over three different days where this judge tried

621
00:27:27.390 --> 00:27:30.870
to figure out how something this obtuse could be relevant

622
00:27:30.870 --> 00:27:31.740
at trial.

623
00:27:31.740 --> 00:27:32.970
And he then, only

624
00:27:32.970 --> 00:27:35.640
after figuring out that really there's minimal relevance

625
00:27:35.640 --> 00:27:37.650
to this, and he heard everything that the Court has heard,

626
00:27:37.650 --> 00:27:38.880
and he read the SANE interview,

627
00:27:38.880 --> 00:27:40.590
and he said, "Please explain to me

628
00:27:40.590 --> 00:27:41.790
how this could be relevant.

629
00:27:41.790 --> 00:27:43.140
What is this probative of?"

630
00:27:43.140 --> 00:27:44.647
And we still just get this,

631
00:27:44.647 --> 00:27:46.410
"Isn't it weird that," right?

632
00:27:46.410 --> 00:27:49.890
And so, then comparing that to the prejudice to trial,

633
00:27:49.890 --> 00:27:52.200
the fact that AD Siconolfi is now gonna have

634
00:27:52.200 --> 00:27:53.760
to prove the Barry case

635
00:27:53.760 --> 00:27:55.620
and rebut this idea

636
00:27:55.620 --> 00:27:58.140
that lightning doesn't strike twice simply

637
00:27:58.140 --> 00:28:01.680
because he offered 20 bucks for a dance on video.

638
00:28:01.680 --> 00:28:04.770
It, the judge, that's absolutely the judge's call, right?

639
00:28:04.770 --> 00:28:07.560
And it doesn't violate these constitutional rights.

640
00:28:07.560 --> 00:28:08.850
It doesn't violate the Statute.

641
00:28:08.850 --> 00:28:11.100
It is, the judge is always allowed

642
00:28:11.100 --> 00:28:12.390
to make relevancy calls here.

643
00:28:12.390 --> 00:28:15.300
And this judge, frankly, went over and above, right,

644
00:28:15.300 --> 00:28:17.670
because he didn't have the benefit of a written motion.

645
00:28:17.670 --> 00:28:19.500
He never really got clarity about

646
00:28:19.500 --> 00:28:21.720
what this was probative of.

647
00:28:21.720 --> 00:28:22.773
And yet he went-

648
00:28:23.790 --> 00:28:25.020
<v ->Is it that opaque</v>

649
00:28:25.020 --> 00:28:27.520
what it's relevant to that

650
00:28:28.740 --> 00:28:30.870
the credibility of the complainant?

651
00:28:30.870 --> 00:28:32.370
Is it really that unclear?

652
00:28:32.370 --> 00:28:33.870
<v ->I think it is because I'm trying</v>

653
00:28:33.870 --> 00:28:35.880
to imagine a different case, right,

654
00:28:35.880 --> 00:28:39.630
where a defense attorney says, this person committed,

655
00:28:39.630 --> 00:28:41.100
this person was mugged

656
00:28:41.100 --> 00:28:42.960
and he said the person was wearing a red sweatshirt,

657
00:28:42.960 --> 00:28:44.550
and he said, "Gimme $20."

658
00:28:44.550 --> 00:28:45.960
And then he pulled out a knife,

659
00:28:45.960 --> 00:28:48.030
and then a year later, he comes out,

660
00:28:48.030 --> 00:28:49.830
and he says, "Yeah, this person had a red shirt

661
00:28:49.830 --> 00:28:51.930
and he pulled out a knife and he said, "This ain't $20."

662
00:28:51.930 --> 00:28:55.380
That's never coming in a case.

663
00:28:55.380 --> 00:28:57.240
A defense attorney wouldn't bother doing that.

664
00:28:57.240 --> 00:29:00.030
The reason a defense attorney is doing it in this case is

665
00:29:00.030 --> 00:29:02.430
because whether he's gonna articulate it or not,

666
00:29:02.430 --> 00:29:06.660
he's looking for that to present this myth

667
00:29:06.660 --> 00:29:10.020
of the innocent victim, the righteous victim, the idea

668
00:29:10.020 --> 00:29:11.370
that lightning doesn't strike twice.

669
00:29:11.370 --> 00:29:13.507
So that the jury is then wondering,

670
00:29:13.507 --> 00:29:15.090
"What's wrong with this kid?

671
00:29:15.090 --> 00:29:16.140
What am I missing here?

672
00:29:16.140 --> 00:29:17.347
Why does this keep happening to her?

673
00:29:17.347 --> 00:29:21.540
<v ->I thought the theory was pretty clearly articulated,</v>

674
00:29:21.540 --> 00:29:25.650
which was that this victim is pulling

675
00:29:25.650 --> 00:29:30.650
on her prior experience in order to get

676
00:29:31.740 --> 00:29:35.490
the defendant out of the house

677
00:29:35.490 --> 00:29:40.050
because he is a strict disciplinarian

678
00:29:40.050 --> 00:29:41.790
as to her siblings.

679
00:29:41.790 --> 00:29:42.870
I thought that was the theory.

680
00:29:42.870 --> 00:29:44.010
<v ->Yeah, well, certainly the theory</v>

681
00:29:44.010 --> 00:29:46.860
of bias was right, that was well-established,

682
00:29:46.860 --> 00:29:49.830
but corroborating that bias by introducing

683
00:29:49.830 --> 00:29:53.880
an entirely different, and really different in kind,

684
00:29:53.880 --> 00:29:55.800
right, because when you look at Jacques,

685
00:29:55.800 --> 00:29:59.370
it wasn't simply an escalation just, well,

686
00:29:59.370 --> 00:30:03.060
and she also did this, I mean, this was a serial series

687
00:30:03.060 --> 00:30:06.300
of sexual assaults, whereas Barry was what looked to be

688
00:30:06.300 --> 00:30:08.220
a one or two off episode by somebody

689
00:30:08.220 --> 00:30:10.200
who was visiting the house, right?

690
00:30:10.200 --> 00:30:13.563
And so, you know,

691
00:30:14.844 --> 00:30:19.410
to say, you know, this is somebody who was aware, well,

692
00:30:19.410 --> 00:30:21.557
let me, as we get to Ruffin, right,

693
00:30:21.557 --> 00:30:24.180
I mean that was part of the issue with Ruffin.

694
00:30:24.180 --> 00:30:27.210
This court made clear in Ruffin, it wasn't in order

695
00:30:27.210 --> 00:30:29.970
to help a defense bolster this argument they're making

696
00:30:29.970 --> 00:30:32.280
rather it's to deal with the assumptions

697
00:30:32.280 --> 00:30:35.370
that society has about chastity norms

698
00:30:35.370 --> 00:30:38.280
and that a youthful victim wouldn't know.

699
00:30:38.280 --> 00:30:40.320
So, you really would be creating

700
00:30:40.320 --> 00:30:43.080
and opening the door to a brand new exception.

701
00:30:43.080 --> 00:30:44.280
You wouldn't be expanding Ruffin,

702
00:30:44.280 --> 00:30:47.400
you would be opening a door to a brand-new exception

703
00:30:47.400 --> 00:30:52.350
for this substantial similarity idea to come forward.

704
00:30:52.350 --> 00:30:54.120
<v ->Can I ask a factual, I'm just trying,</v>

705
00:30:54.120 --> 00:30:56.430
I'm reading through the motion session for a second.

706
00:30:56.430 --> 00:31:00.000
Is the $20 dancing, is there a difference,

707
00:31:00.000 --> 00:31:01.650
I'm just reading here.

708
00:31:01.650 --> 00:31:04.290
Morris Barry propositioned them

709
00:31:04.290 --> 00:31:06.000
to have sex for $20.

710
00:31:06.000 --> 00:31:09.630
Mr. Jacques said that he would take them to,

711
00:31:09.630 --> 00:31:14.160
them to take naked pictures for 10 or $20.

712
00:31:14.160 --> 00:31:17.880
So is there, is this more distinguishable

713
00:31:17.880 --> 00:31:20.520
that they're not exactly the same?

714
00:31:20.520 --> 00:31:21.810
I just don't know the...

715
00:31:21.810 --> 00:31:23.280
I haven't read the whole record here.

716
00:31:23.280 --> 00:31:24.633
<v ->I apologize, your Honor.</v>

717
00:31:25.478 --> 00:31:28.317
I know that there was offering money

718
00:31:28.317 --> 00:31:29.150
for various things-

719
00:31:29.150 --> 00:31:30.930
<v ->But were they offering money for different things?</v>

720
00:31:30.930 --> 00:31:34.713
I mean, $10 for a picture versus $20 for sex.

721
00:31:35.670 --> 00:31:36.763
hat's different.

722
00:31:36.763 --> 00:31:38.673
<v ->I, and I should be, you know,</v>

723
00:31:40.080 --> 00:31:41.700
I should be more familiar with the record than I am.

724
00:31:41.700 --> 00:31:45.510
But you do have the SANE interview

725
00:31:45.510 --> 00:31:47.640
where she discusses, and Barry,

726
00:31:47.640 --> 00:31:50.550
and it has everything in there, and-

727
00:31:50.550 --> 00:31:53.730
<v ->When we compare, so we've gotta compare the record to,</v>

728
00:31:53.730 --> 00:31:57.810
on the, 'cause if it's the same $20 for dancing

729
00:31:57.810 --> 00:32:02.220
or sex versus, you know, money for something,

730
00:32:02.220 --> 00:32:04.980
you know, relate sexual but unrelated,

731
00:32:04.980 --> 00:32:06.330
we gotta pin that down.

732
00:32:06.330 --> 00:32:09.870
<v ->You would, but then again, I just, the implicate-</v>

733
00:32:09.870 --> 00:32:11.850
<v ->You don't think that even that,</v>

734
00:32:11.850 --> 00:32:14.610
even if it's exactly the same, is relevant.

735
00:32:14.610 --> 00:32:16.560
But if it's different, that helps you a lot.

736
00:32:16.560 --> 00:32:18.480
<v ->It does, but I would also say that,</v>

737
00:32:18.480 --> 00:32:21.330
we're also ignoring the implications

738
00:32:21.330 --> 00:32:22.830
of letting something

739
00:32:22.830 --> 00:32:25.560
so small then determine, then open the door

740
00:32:25.560 --> 00:32:27.990
to essentially the entirety of the Barry.

741
00:32:27.990 --> 00:32:30.840
It wouldn't just be, didn't somebody else offer you $20

742
00:32:30.840 --> 00:32:32.880
for, to dance one time?

743
00:32:32.880 --> 00:32:36.600
It really would open up the whole war.

744
00:32:36.600 --> 00:32:40.080
<v ->You may win on something easier, which is that there,</v>

745
00:32:40.080 --> 00:32:41.610
it's not exactly the same

746
00:32:41.610 --> 00:32:43.590
and you may wanna win on something easier.

747
00:32:43.590 --> 00:32:44.850
<v ->Well, I would,</v>

748
00:32:44.850 --> 00:32:47.510
however, I...

749
00:32:49.620 --> 00:32:52.110
The Court, I don't think I appreciate

750
00:32:52.110 --> 00:32:53.820
that you mentioned from the very beginning

751
00:32:53.820 --> 00:32:55.380
how narrowly this court has always looked

752
00:32:55.380 --> 00:32:56.490
at the Rape Shield statute.

753
00:32:56.490 --> 00:32:58.590
And my concern isn't just for this case,

754
00:32:58.590 --> 00:33:01.170
it is for every case from this case.

755
00:33:01.170 --> 00:33:03.780
And so, I appreciate that this court has recognized

756
00:33:03.780 --> 00:33:06.033
how concerning these can be.