CA Supreme Court Justices (L to R): Carlos R. Moreno, Kathryn Mickle Werdegar, Joyce L. Kennard, Chief Justice Ronald George, Marvin Baxter, Ming Chin, Carol Corrigan


On Monday June 21, 2010, the California Supreme Court unanimously upheld and protected the state’s rape shield law, that would prevent specific instances of a victim’s sexual conduct from being admitted as evidence or proof of consent by the victim in a prosecution of a sexual assault or other sex offense.  The 7 to 0 opinion of the court sets an optimistic precedent for the protection of future victims and prevents defendants from using a victim’s sexual history as proof of consent.
More details on this decision and the specifics of this case after the break…

The Supreme Court heard the case of People v. Fontana in which the background and decision is as followed:
The crime occurred in San Francisco in March of 2003 at the Windsor Hotel where the offender, Danny Fontana, a registered sex offender, was residing. Fontana and the 19 year old victim, hereby known as “Irene S.,” had become acquaintances because they were both regular customers at a local discount store. Irene had expressed interest to the store owner that she was looking for a cheap laptop for school. Soon after, the offender had mentioned he had a laptop in his room for sale but did not want to bring it to the store and that Irene would have to come to his room to view the discount laptop. After initially refusing, Irene eventually made her way to the offender’s hotel and was forced into his room where she was threatened with her life, strangled, sexually assaulted, and then photographed.
When Irene was able to eventually leave the offender’s premises, she later reported the rape to the discount store owner and soon after her father who notified law enforcement.
The offender, Danny Fontana had been previously convicted of rape in 1975, as well as false imprisonment, assault with intent to commit rape, and attempting to dissuade a witness in a 1992, where he threatened a woman at knife point to perform oral copulation. Fontana had been classified as a high-risk sex offender and was on parole. Fontana admitted to strangling Irene, but as a defense against the victim coming onto him and offering to perform sexual acts in exchange for the laptop. He also claimed to strangle her because of his “lifelong fear of having his penis bitten off” when she offered to perform oral sex. Additionally, he claimed that the victim’s genital injuries were caused by her consensual sex with her boyfriend several hours prior to suspected assault and he knew about it because he witnessed seminal fluid “in her privates.”  During the investigation, Irene admitted to having sex with her boyfriend twice that morning.
The defense attorney petitioned the trial court judge to have an evidentiary hearing without the jury present, in order to prove that Irene’s sexual activities earlier that day were relevant to Fontana’s defense that he did not cause the rape-related injuries. Forensic experts agreed that her genital injuries could have been caused by regular sexual activity, but that her other injuries were absolutely caused by strangling and the defendants claims could not explain the injuries to her oral cavity.  The trial court judge denied the defense’s petition to include the victim’s sexual history, citing the lack of relevance that would allow the lowering state’s rape shield law. The jury found Fontana guilty of forcible digital penetration, forcible oral copulation, assault with intent to commit rape, digital penetration, oral copulation, and all by use of a deadly weapon.  Fontana was sentenced to 75 years to life plus a determinate 14 years for forcible oral copulation.
The Court of Appeal reversed the trial courts decision, finding that the trail court erred in excluding evidence of Irene’s consensual encounter earlier that day, which could have provided an alternative explanation for injuries to Irene.
The Supreme Court, upon review, rejected Fontana’s claim that the trial court deprived him of his right to confront witnesses or his right to present a defense. They stated the following reasons:

  1. “The inability of the defense to prove that her oral injuries were caused by her consensual sex earlier in the day.”
  2. “The trial jury found beyond a reasonable doubt that the defendant digitally penetrated the victim, as the victim had testified and contrary to the defendant’s testimony that he had no sexual contact with the victim at all.  In making this finding, the jury necessarily rejected the defendant’s claim that he had lashed out violently (but not sexually) at the victim because of his lifelong fear or having his penis bitten off during oral sex.” Which was thoroughly rebutted by his admissions that he demanded oral sex in 1992 and that he engaged in oral sex with his current girlfriend.
  3. The Supreme Court agreed with the trial courts description that the defendant’s claims were “utterly fantastic and inherently unbelievable and [an] incredible claim that the [Irene] on her own initiative, despite refusing to come up before, on her own initiative came up to the defendant’s room after recent sex with [her] boyfriend…”
  4. The Supreme Court found that the defendants contradicted his own claim by his actions of taking his shirt off and sitting next to her on his bed, “which is presumably the opposite of how one would have acted if he had seen semen ‘in her privates’ and had been disgusted.”
  5. The Supreme Court also agreed with the trail court that the “defendant’s claim that there was visible semen ‘in her privates’ several hours after Irene had intercourse and despite having worn panties in the interim defies gravity and common sense, and the defendant offered no medical foundation that could link his observation to her prior conduct.”
  6. Finally the Supreme Court found the “defendant had little need to establish that Irene had actually engaged in sex that day in order to support his contention that he was disgusted by the appearance of ‘her privates,’ since it can be difficult to distinguish visually between seminal fluid and cervical mucus, which is a normal discharge that increases around the time of ovulation.  Defendant’s testimony depended on his belief that what he saw was seminal fluid.”

Is California’s current rape shield statute adequate enough to protect a victim’s past from being put on trial?  We’d like your feedback.