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In an unusual mandamus decision, Austin, Texas’s 3rd Court of Appeals has ruled that the state’s “rape victim’s shield law” can provisionally be applied in a civil suit. Some observers believe the May 25 ruling, In Re Jane Doe, is the first to allow that criminal rule of evidence to be applied in the discovery portion of a civil proceeding. In her civil suit, Doe alleges she was raped by a guard while incarcerated in the Travis County Community Justice Center — a Texas state jail facility operated by Wackenhut Corrections Corp., a private company based in Palm Beach Gardens, Fla. According to the 3rd Court’s opinion, Doe sued Wackenhut and some of its employees alleging that because of Wackenhut’s negligence, she is entitled to damages for past and future pain and mental anguish as well as punitive damages. According to the opinion, state and county authorities investigated activities at the jail, Wackenhut’s contract was terminated and the guard who allegedly raped Doe was indicted. Wackenhut denies all of the allegations. Wackenhut general counsel John Bulfin did not return a call seeking comment. In a mandamus petition to the 3rd Court, Doe appealed the decision of Visiting Judge Charles F. “Chuck” Campbell, who had granted two motions made by Wackenhut during discovery. Last year, Campbell ruled that Doe must submit to a mental exam, answer discovery questions listing her mental health care providers and disclose her mental health records, according to the 3rd Court’s opinion. Doe’s lawyers also appealed Campbell’s denial of their request for a protective order, saying that without such an order, the defense would essentially be able to harass her by inquiring into her past sexual activity. “At this early stage of the litigation and considering the fact that Doe pleads that this was a forcible assault and the grand jury indicted [the guard] under the criminal statues for the crime of sexual assault, we hold that until the record is more fully developed and these issues are clarified, the rape shield laws ought to protect the victim, the plaintiff, at this time,” wrote Justice Mack Kidd, who was joined by Chief Justice Marilyn Aboussie and Justice Bea Ann Smith. VICTORY A SURPRISE Ron Weddington, an Austin plaintiff’s lawyer who represents Doe, wasn’t prepared for the opinion, which was a victory for his client. “This is historical,” says Weddington, a partner in Friedman & Weddington. “In researching this, I was not able to find a case in any jurisdiction where they extended the rape victim shield laws to a civil case.” It’s the sort of ruling that will likely be appealed, Weddington concedes. Yet it’s the type of appeal that is fraught with political implications, he says. “If the Supreme Court wants to come down against women … ” Weddington speculates. “ I’m not too worried about the court touching this.” John Carsey, an attorney who represents Wackenhut, is also a bit stunned by the ruling. He says he hasn’t discussed with his client how to proceed. “I don’t fully understand if that’s a precedent they’re setting,” says Carsey, a partner in Austin’s Minton, Burton, Foster & Collins. “What it seems to say [is] that based on the pleadings right now … the rape shield law lives with us until there’s [a] determination that shows that it doesn’t apply.” For now, the ruling puts the defense in a box, Carsey says. It prevents the exploration of a convict’s past history, which may be relevant to a case. Notes Carsey, “We’re in the position of having somebody accuse us of doing terrible things.”

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