A lecturer at the CLE I'm currently attending asked whether Virginia has the "lustful disposition" evidence rule allowing unadjudicated sexual acts to be introduced against a defendant charged with a child sex abuse case. Nobody in the room knew the answer so I thought I'd check.
Yes. Virginia has this rule.
The federal government and many States adopted a specific rule of evidence setting out this rule [Rule 414] starting in 1994. However, at that time Virginia did not have codified rules of evidence and it did not adopt them until 01 June 2012. When it did so it did not adopt the federal rules, but codified much of the common law rules of evidence in a manner similar to the federal rules in Part Two of the Virginia Supreme Court Rules. However, those parts of common law rules of evidence not in the new rules of evidence did not go away:
[The Rules] are adopted to implement established principles under the common law and not to change any established case law rendered prior to the adoption of the Rules. . . . As to matters not covered by these Rules, the existing law remains in effect. Where no rule is set out on a particular topic, adoption of the Rules has no effect on current law or practice on that topic. Rule 2:102
I point this out because when Virginia adopted its rules it did not create a Rule 414. This failure to say yea or nay requires us to go old school and look to Virginia's case law to see where things stand.
The lustful disposition rule has been well established in Virginia since at least 1923:
The authorities are in conflict upon the general question as to whether, in a prosecution for statutory rape, evidence may be admitted of intercourse between the accused and the prosecutrix subsequent to the act upon which the prosecution is based. The better doctrine, as we think, is that where, as here, the consent of the prosecutrix is immaterial, such evidence is admissible as tending to show the disposition of the defendant with respect to the particular act charged. Stump v. Commonwealth, 137 Va. 804 (1923).
While Stump is largely used in Virginia case law for the proposition that rape can be thru force or constructive force, its precedent as to unadjudicated sexual acts with minors has remained in place:
The court specifically instructed the jury that this evidence [unadjucated sexual activity] was not to be considered for any purpose other than as it might tend to show the disposition of the defendant with respect to the particular act charged. Defendant has nothing to complain about on this point. Waitt v. Commonwealth, 207 Va. 230 (1966).
Even later, Stump was relied upon in Marshall v. Commonwealth, 5 Va.App. 248 (1987) as supporting precedent for the introduction of an existing rape conviction for an act within the same time period of the current indictment for rape of the minor.1
In 2008, the Virginia Supreme Court again laid out this rule without specifically citing Stump:
It is well settled that in a prosecution for incest, evidence of acts of incestuous intercourse between the parties other than those charged in the indictment or information, whether prior or subsequent thereto, is, if not too remote in point of time, admissible for the purpose of throwing light upon the relations of the parties and the incestuous disposition of the defendant toward the other party, and to corroborate the proof of the act relied upon for conviction. Ortiz v. Commonwealth, 276 Va. 705 (2008)(grandfather having sex with granddaughter under 13 yoa).
For those of you who can't wrap your head around having a rule of evidence without a number attached, you could find your safe harbor under Rule 2:404(b):
[E]vidence of other crimes, wrongs, or acts is generally not admissible to prove the character trait of a person in order to show that the person acted in conformity therewith. However, if the legitimate probative value of such proof outweighs its incidental prejudice, such evidence is admissible if it tends to prove any relevant fact pertaining to the offense charged, such as where it is relevant to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, accident, or if they are part of a common scheme or plan.
Admittedly, I've not met many judges who favor letting anything thru under this portion of the rule. In fact, I had one tell me that the only thing he'd ever let in under this would be modus operandi proof. It is, after all, one of the biggest catch-all exceptions in the rules. However, if your judge is young enough that she can't see beyond the numbers2 this is probably the best place to hang your hat as you recite the precedent to support the common law rule.
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1 A case rendered redundant by the passage of § 18.2-67.7:1 and adoption of Rule 2:413 in accordance with the law [both in 2014].
2 We old farts all learned the rules of evidence under the common law. Thus, we neither know all the numbers nor particularly care about them.
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