The Appeals Court of Massachusetts ruled in Commonwealth v. Christie, 2016 WL 3581839, 2016 Mass. App. LEXIS 79 (July 6, 2016), that the conviction of a man on charges of statutory rape, indecent assault and battery on a boy had to be reversed because of improper evidence based on the defendant’s possession of videos depicting “generic same-sex sex” involving adults. At the same time, the court affirmed the defendant’s conviction on a charge of “dissemination to a minor of matter harmful to minors” for showing his 12-year-old male victim a pornographic video.
In 2005, wrote Judge Rubin, Daniel “disclosed to his mother and the police a single alleged act of the defendant performing oral sex on him, and on that basis the defendant was charged with one count of statutory rape. On the eve of trial, in 2007, Daniel disclosed to the district attorney and the police all the other alleged sex acts.” Police obtained a search warrant for the defendant’s residence, and turned up DVDs and videotapes depicting both heterosexual and homosexual pornography depicting adults. At trial, Daniel testified that during the summer of 2005, when he was 12, he and his mother were living with the defendant, who twice performed oral sex on him and got him to penetrate the defendant anally. He also testified about waiting in the car while defendant purchased a “sex toy” (i.e., a dildo) and some pornographic DVDs, and that the defendant “inserted the sex toy into Daniel’s anus, stopping when Daniel said he was ‘uncomfortable.’” Daniel also testified that defendant showed him some gay pornography depicting men having intercourse.
The court described the defendant as “openly gay.” Referring to rulings at trial on admissibility of the pornography evidence, “the judge concluded correctly that evidence of a man’s homosexuality is irrelevant to whether he has a sexual interest in children,” wrote Judge Peter J. Rubin, “but in part in reliance on our decision in Commonwealth v. Wallace, 70 Mass. App. Ct. 757 (2007), he concluded that the same-sex pornography was relevant to the defendant’s sexual interest in Daniel and to the manner and means by which the charged rapes and sexual assault were allegedly committed, that the risk of unfair prejudice from this evidence did not substantially outweigh its probative value, and that with a proper limiting instruction the videotapes could be admitted in evidence. The judge excluded the heterosexual pornography.” As an attempt to lessen prejudice to the defendant, the trial judge refused to have the gay pornography exhibited to the jury, instead allowing the prosecution to introduce testimony describing its content.
The appeals court disagreed with the trial judge as to admissibility of the descriptions of the gay videos. While agreeing with the prosecution that “these descriptions were not introduced as impermissible propensity evidence” and that the judge had carefully instructed the jury that “the challenged evidence could not be used to demonstrate the defendant’s propensity to engage in such conduct in order to prove that he committed the charged acts in this case,” nonetheless it was improper for the judge to tell the jury that they could rely on these descriptions of the videotapes as evidence of “sexual interest and state of mind … as it relates to [Daniel] and as it relates to the manner and means by which the Defendant allegedly accomplished the alleged sexual assault.” While the Wallace case had allowed admission of heterosexual pornography, the court found the circumstances distinguishable in light of the contentions of the parties and the overall state of the evidence in that case. “As the judge in this case recognized, however,” wrote Judge Rubin, “and as this court has held, evidence of an adult’s homosexuality is irrelevant to sexual interest in children.” Rubin cited on this point the appeals court’s ruling in 2009 setting aside the conviction of Bernard Baran, a young man who was convicted of molesting children at the day care center where he work based on subsequently-discredited “rehearsed” testimony by young children and by the fact that he was openly gay. (Baran was discharged from state prison after lengthy and debilitating incarceration and died prematurely a few years later.)
Once again citing the Baran ruling (74 Mass. App. Ct. 256), Rubin wrote, “the myth that homosexual men have an interest in sex with underage children has been discredited. The use of evidence of an adult’s homosexuality to demonstrate a sexual interest in underage boys (or, indeed, underage children of either gender) is thus impermissible. Given this, we agree with the defendant that evidence of his interest in viewing depictions of adult males engaged in generic acts of same-sex sex, absent any additional factors like the ones present in Wallace, is irrelevant to whether he has an interest in sexual contact with an underage boy. The impropriety of admitting this evidence to show the defendant’s state of mind and sexual interest with respect to boys becomes clear if one imagines that the evidence was about heterosexual pornography and the victim were a girl. No court properly could find a defendant’s mere possession of adult heterosexual pornography relevant to proving his sexual interest in a female child.”
“The ingrained stereotypes and mistaken views still held by some individuals render evidence such as that introduced here unfairly prejudicial. Even though there was other evidence that the defendant here, who never disputed his sexual orientation, was gay, and that he owned pornography, the error in the admission of the explicit descriptions of his interest in same-sex sex, exacerbated by the instruction on its permissible use, was prejudicial.” The court concluded that reversal was required on all counts except dissemination, “with respect to which the jury were expressly informed they could not use this evidence.”
Since retrial was likely, the court addressed other flaws in the trial court’s instructions. The jury had been told they could take the descriptions into account “as it relates to the manner and means by which the defendant allegedly accomplished the alleged sexual assaults.” Judge Rubin rejected the prosecution’s argument that the acts depicted in the videos were “unique enough” to “show that the defendant had an interest in engaging in those acts, whether with an adult or a child.” This was “generic” gay porn, the judge pointed out, “the ordinary means of men having same-sex sex. It follows from our holding above that, standing alone, an interest in viewing lawfully possessed depictions of adult men having gay sex is not relevant to the question whether a male adult has an interest in engaging in sex acts of that kind with underage boys, just as, standing along, an interest in viewing lawfully possessed depictions of adults engaged in heterosexual sex cannot support a conclusion that a male adult has an interest in engaging in sex acts of the same kind with underage girls.”
Judge Rubin also commented that because it was “undisputed” that the videos seized by the police in 2007 were not shown to Daniel by the defendant in 2005, they could not be admitted in support of a theory that the defendant showed him the videos to “groom him” into accepting the idea of having sex with the defendant. “Any such corroborating value of the defendant’s possession of these videotapes of generic acts of adult same-sex sex – at a different residence, two years after the crimes are alleged to have been committed – is too attenuated to overcome the risk of undue prejudice from this evidence,” he wrote. “These depictions thus may not be admitted for such a corroborative purpose under the applicable standard.”
One of the videos seized by the police showed the use of a dildo, and one of the counts of statutory rape “involves an allegation of the use of such a device in a similar manner on Daniel,” wrote Rubin. However, he wrote, the prosecutor “has not put any evidence in the record before us to show that use of a sex toy is a sufficiently distinctive sexual act that it could be admitted to show the defendant’s specific interest in this practice. . . There is nothing in the record to support a conclusion that this conduct is so unusual that the probative value of evidence that the defendant possessed a visual depiction of it is more probative of his interest in engaging in it than unfairly prejudicial. Nor is there evidence that interest in the use of such a sex toy with an adult would be probative of an individual’s interest in using one with an underage child with whom he was unlawfully having sex.”
The court disclaimed expressing any view about the defendant’s guilt or innocence, but held that the statutory rape convictions must be reversed and the verdicts set aside, although, as noted above, the conviction on the dissemination charge was affirmed. The defendant was represented on this appeal by Alexei Tymoczko.