The skinny on jeans defense

On April 30, 2010, an Australian jury acquitted Nicholas Gonzales of rape on what has come to be known as the “skinny jeans defense.”  The defense convinced the jury that it would be “difficult for skinny jeans to be taken off by someone else unless the wearer’s assisting, collaborating, consenting.”  This Australian case is just the latest to test the skinny jeans defense.  The defense had been successful previously in a 1999 Italian case and a 2008 Korean case

A natural question is whether it would be possible for a jury to reach such a conclusion in California.  The answer largely depends upon whether evidence of the accuser’s dress is barred by California’s Rape Shield Law.  Rape Shield Laws are statutes intended to protect an accuser by limiting the admissibility of evidence concerning her past sexual history.  California’s statute, codified in Evidence Code section 1103, is more expansive than some states.  In addition to excluding evidence concerning the accuser’s past behavior, it prohibits admitting evidence of the victim’s dress in order to show consent.  Subdivision (c)(2), states in part:

[E]vidence of the manner in which the victim was dressed at the time of the commission of the offense shall not be admissible when offered by either party on the issue of consent in any prosecution . . . unless the evidence is determined by the court to be relevant and admissible in the interests of justice

A cursory reading would suggest that an accuser’s skinny jeans would be inadmissible with regard to the question of her consent.  A closer reading, however, suggests that a court might admit the evidence to show something other than consent.  For example, in the high profile Kobe Bryant rape trial, though the victim’s sexual past was ostensibly protected by a similar rape shield law, the protection was bypassed in order to show a possible alternate source of injuries.  With regard to a skinny jeans defense, the code might permit evidence of the accuser’s clothing not to show the accuser is morally loose (unlike her pants), but for purposes such as showing physical impossibility.  Even so, the judge still has the discretion to make a relevance determination before the evidence can be presented to the jury.  So while the California’s Rape Shield Law might let evidence of the accuser’s skinny jeans fly, a judge still has the option to keep it buttoned up. 

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