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Rape conviction overturned due to prosecutorial misconduct

A Vancouver client’s 2017 convictions for raping his wife have been thrown out by the Court of Appeals.

In a 3-0 ruling, appellate judges cited prosecutorial misconduct as grounds for reversal, including a Clark County deputy prosecutor’s comments about anal sex she made during closing argument.

The client, who was represented at trial by attorney Neil Anderson, was convicted of second-degree rape and third-degree rape and sentenced to 12 years in prison. After his wife called 911 to report she’d been raped, responding police officers asked the client whether the sex with his wife had been consensual. The client said his wife didn’t say yes or no and “just laid there” but said it was normal for his wife to not actively participate.

At trial in Clark County Superior Court, the deputy prosecutor asked the client a lot of questions about whether it was hygienic to have anal sex before vaginal sex without cleaning himself in between.

The client said he was unaware it was not hygienic and that he and his wife had done it before.

During closing argument, the deputy prosecutor told the jury the defendant’s sexual practices were “not normal” and “gross.”

“He never cleaned himself off. He had no concern for his wife’s health,” she said. “He kind of conceded that it’s gross to put your penis in someone’s anus and then immediately in her vagina. If you’re having anal sex and vaginal sex, there is typically an order to that, and it’s usually the opposite. When it’s not, there is typically cleaning involved. This was not consensual. This was not normal sex.”

From the opinion, written by Judge Linda Lee: The state never called any witnesses or medical professionals to testify as to the health risks associated with this sexual practice. And when asked on cross examination, (the defendant) actually testified that he was not aware that this was unhygienic and that he and (his wife) had engaged in this sexual practice before. The entire basis for the state’s argument appeared to stem from the prosecutor’s personal opinion that engaging in anal sex before vaginal sex was atypical, unhygienic, gross and that “there is typically cleaning involved” when one has anal sex and vaginal sex. Not only was this argument unsupported by the evidence, but it also served no purpose other than to deliberately appeal to the passions and prejudice of the jury. The prosecutor described (the defendant's) sexual conduct as abnormal and gross, and implied that because this sexual act was not normal, it could not have been consensual. This was a deliberate appeal to the passions and prejudice of the jury, and was improper.

The client’s convictions for the lesser crimes of misdemeanor assault, violating a no-contact order and witness tampering were upheld. He will be brought back to Clark County from prison for the prosecutor’s office to retry him on the rape charges.

Tags: criminal law, Clark County, sex offense

Jeffrey D. Barrar, P.S.: Vancouver Defenders Jeffrey D. Barrar, P.S.
Vancouver Defenders