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Addressing the issue for the first time, the 2nd U.S. Circuit Court of Appeals has found that admitting evidence of a victim’s sexual history in a sexual harassment suit violates the Federal Rules of Evidence. However, while the court adopted an interpretation of Rule 412 already recognized by several district courts outside the 2nd Circuit, it ruled that admission of the evidence in the case at hand was harmless error. The ruling in Wolak v. Spucci, 99-7535, upheld a district court’s dismissal of a sexual harassment claim brought by a female police officer against her fellow officers and the police department. Tracey Wolak was a seven-year veteran of the police force in the Village of Pelham Manor, N.Y., when she filed suit claiming that fellow officers refused to “back her up,” and repeatedly posted pornographic pictures in the police station. At trial, New York Southern District Judge Charles L. Brieant allowed the defense to question Wolak about parties she attended in which pornographic videos were shown — and other occasions in which she witnessed sexual acts being performed. Brieant said he allowed the evidence to meet a need for “balance and practicality in dealing with … plaintiff’s sexual sophistication in the context of a hostile environment case. At least for purposes of computing her damages for shame and humiliation and the like, no plaintiff should be permitted to portray herself to a jury falsely, as some sort of shrinking violet or as a novice in a nunnery.” Although the jury found that there was a hostile work environment at the police station, it also found Wolak was not injured, and Brieant entered judgment dismissing her claim. On appeal, 2nd Circuit Judge Rosemary S. Pooler reviewed Rule 412(a), which bars, with limited exceptions, evidence of a victim’s “sexual behavior” or “sexual predisposition” in all civil or criminal proceedings involving sexual misconduct. “We hold that Rule 412, which explicitly includes civil cases involving sexual misconduct, encompasses sexual harassment lawsuits,” Pooler said. “Thus, we find that the district court erred in concluding that Rule 412 did not govern the admissibility of evidence of plaintiffs sexual behavior.” The defense had argued that, even if Rule 412 applied to sexual harassment suits, questioning Wolak about her sexual behavior was relevant in determining whether she was actually offended (to establish a hostile work environment) and in determining damages. “We conclude that the evidence was of, at best, marginal relevance,” Pooler said. “Whether a sexual advance was welcome, or whether an alleged victim in fact perceived an environment to be sexually offensive, does not turn on the private sexual behavior of the alleged victim, because a woman’s expectations about her work environment cannot be said to change depending on her sexual sophistication.” “Even if a woman’s out-of-work sexual experiences were such that she could perhaps be expected to suffer less harm from viewing run-of-the-mill pornographic images displayed in the office, pornography might still alter her status in the workplace, causing injury, regardless of the trauma inflicted by the pornographic images alone,” Pooler said. Therefore, the probative value of Wolak’s private behavior was “substantially outweighed,” by the danger of harm and unfair prejudice, she said. Nonetheless, the court found that “plaintiff offered no evidence from which the jury could infer that the hostile work environment at the police department injured her.” An amicus curiae brief filed by Laura Rossi-Ortiz on behalf of the League of Women Voters of New York State, the National Organization for Women and other organizations argued, Pooler said, that “the jury’s failure to award damages after finding a hostile environment proves that the improper evidence of plaintiff’s sexual behavior had a prejudicial impact.” The court was unpersuaded. “We would agree were there any evidence of harm to the plaintiff,” Pooler said. “… [B]ut, in fact, the jury’s verdict followed inevitably from plaintiff’s failure to introduce any evidence of damages.” Judge Chester J. Straub and Senior Judge Ellsworth A. Van Graafeiland joined in the opinion. John A. Keefe and William G. Rives, of John A. Keefe PC, represented Ms. Wolak. David L. Posner, of McCabe & Mack, represented the individual defendants and the Village of Pelham Manor.

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