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State v. Hendricks11/16/2001
against his wife was probative on the issue of identity and was admitted "to establish the relationship of the parties, the existence of a continuing course of conduct between the parties, or to corroborate the testimony of the complaining witnesses as to the act charged." In Grant, evidence of prior assaults by the defendant on the victim was admitted to explain why the victim permitted contact with the abuser after the assault and then minimized the degree of violence after being contacted by the abuser from jail. "Ms. Grant's credibility was a central issue at trial. The jury was entitled to evaluate her credibility with full knowledge of the dynamics of a relationship marked by domestic violence and the effect such a relationship has on the victim." 920 P.2d at 614. In State v. Kelly, 624 N.E.2d 733, 735 (Ohio Ct. App. 1993), the victim was permitted to testify that the reason she did not try to escape or retaliate was because she knew, based on nine years of abuse, that the defendant would either physically abuse or kill her. Moreover, the reason she did not scream when the defendant forced her and their sons into the car and abducted them was because of an earlier incident when he beat her for screaming. Id. And finally, in Clark, prior incidents of domestic violence between the victim and the defendant were admitted to show "the basis for [the victim's] recantation at trial." 926 P.2d at 206; see Smith v. State, 669 A.2d 1, 5 (Del. 1995) (evidence of repeated acts of violence admitted to establish course of conduct to show victim's lack of consent to sexual intercourse and to explain why she recanted her prior statements and testified that sexual relations were consensual).
Like the trial court, the majority relies on the reasoning in State v. Sanders for admitting the two prior assaults based on "context." But, in that case, we held that the prior bad act evidence went to prove that defendant meant to intimidate and threaten the victim - and "to put the victim's recantation of prior statements into context for the jury." Sanders, 168 Vt. at 62-63, 716 A.2d at 13 (noting that " ictims of domestic abuse are likely to change their stories out of fear or retribution, or even out of misguided affection"). Given the victim's recantation of her prior statements, Sanders is exactly the type of case in which to provide the jury with "context" evidence. That is certainly not the situation here. The victim in this case did not equivocate in her testimony about the charged assault. Indeed, she testified fully in support of the State's case. This was a credibility contest between the two witnesses to the event. There was no need to paint a picture of the relationship between defendant and his wife in order for the jury to make its assessment of who was more credible.
I believe that the "context" rationale is an appropriate approach in certain cases, such as in Sanders. Applied in this case, however, the rationale has no purpose and simply becomes an excuse to admit all evidence of prior assaults against victims of domestic violence. If that is the path we are to take-and I am not convinced that it is the right path in all cases-it should be done through the rule amendment process rather than by dubious or incomplete analysis that warps the existing rules for other crimes. In this case, we should affirm admission of the prior assaults to refute defendant's claims of self-defense and accidental injury, without rationalizing their admission based on "context."
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