THE STATE OF SOUTH CAROLINA
In The Supreme Court
Jane Doe, by her
Guardian ad Litem,
Mary Roe, and Mary
Roe, individually, Petitioners,
School District No. 2, Respondent.
ON WRIT OF CERTIORARI TO
THE COURT OF APPEALS
Appeal From Orangeburg County
A. Victor Rawl, Circuit Court Judge
Opinion No. 24964
Heard June 9, 1999 - Filed July 12, 1999
AFFIRMED AS MODIFIED
Preston F. McDaniel, of Columbia, and Clyde C.
Dean, of Orangeburg, for petitioners.
William E. Craver, III, Bruce E. Davis, and Wendy L.
Wilkie, all of Davis, Craver, Hagood, and Kerr, of
Charleston, for respondent.
WALLER, A.J.: We granted a writ of certiorari to review the Court of
Appeals'opinion in Doe v. Orangeburg County School District No. 2, 329 S.C.
221, 495 S.E.2d 230 (Ct. App. 1997). We affirm as modified.
This is a negligent supervision case. Doe, age 14, a student at Bowman
High School in Orangeburg, was sexually assaulted in the girl's bathroom of the
school gymnasium by an educably mentally handicapped 16 year old student.
Thereafter, Doe and her mother sued the Orangeburg County School District
(District) for negligent supervision alleging that the teacher who was supposed
to be supervising the special education students, Coach Corder, had left the
students unsupervised in the gymnasium, thereby allowing the assault to occur.
As a defense to her claim of negligent supervision, District asserted Doe
had consented to the sexual encounter. Doe moved in limine to exclude any
evidence of her consent to the assault, contending a minor under the age of
sixteen is legally incapable of consenting to sexual battery. The trial court,
relying on the Court of Appeals'opinion in Doe v. Greenville Hospital System,
323 S.C. 33, 448 S.E.2d 564 (Ct. App. 1994), agreed that evidence of Doe's
consent was improper.1 The Court of Appeals reversed and remanded for a new
trial, holding District should have been permitted to introduce evidence of Doe's
consent for purposes of determining liability and damages.
had had a prior relationship, that she went to the gym asking for "her friend"
and willingly accompanied him into the bathroom, and that Doe told a friend
that the incident wasn't really rape. District also proffered the deposition
testimony of the assailant, who testified that the sex was originally consensual,
but that he did not get up as soon as Doe asked him to. Finally, District
proffered testimony tending to dispute the claim Doe was a sweet, innocent
young girl with testimony that she had been overheard making sexually explicit
2 Doe also asserts the assailant's guilty plea renders the issue of consent
res judicata. Given that District was neither a party nor a privy to the plea, the
matter is not res judicata as to District. Sub-Zero Freezer Co. v. R.J. Clarkson
Co., 308 S.C. 188, 417 S.E.2d 569 (1992) (res judicata bars subsequent actions
Did the Court of Appeals err in holding District should have been
permitted to introduce evidence of Victim's alleged consent?
Pursuant to S.C. Code Ann. § 16-3-655 (3):
A person is guilty of criminal sexual conduct in the second degree
if the actor engages in sexual battery with a victim who is at least
fourteen years of age but who is less than sixteen years of age and
the actor is in a position of familial, custodial, or official authority
to coerce the victim to submit or is older than the victim.
In Doe v. Greenville Hospital System, 323 S.C. 33, 37, 448 S.E.2d 564, 566
(Ct.App.1994), cert. dismissed as improvidently granted, 320 S.C. 235, 464
S.E.2d 124 (1995), the Court of Appeals held that in enacting section 16-3-655,
"[a]s a matter of public policy, the General Assembly has determined a minor
under the age of sixteen is not capable of voluntarily consenting to a sexual
battery committed by an older person. . . . This is the law of this state,
whether it is applied in a criminal or civil context."3 (Emphasis
supplied). In both Doe v. Greenville and the present case, the Court of Appeals
held a jury charge that the victim was legally incapable of consenting to the
sexual conduct was proper.4
Doe asserts that to instruct the jury she could not legally consent to the
sexual battery, and simultaneously permit the jury to consider evidence of her
consent is logically inconsistent. We disagree. Initially, we see no reason why
occurrence that was the subject of a prior action between those parties).
3 The South Carolina Constitution also prohibits an unmarried female's
consent. See S.C. CONST, Art.3. § 33 (No unmarried woman shall legally
consent to sexual intercourse who shall not have attained the age of fourteen
years). Given our constitutional provision, we concur with the Court of Appeals'
holding in Doe v. Greenville Hospital that the prohibition on consent applies in
both the criminal and civil context.
4 Accordingly, contrary to Doe's contention, the Court of Appeals did not
limit this principle to criminal cases.
an instruction limiting the jury's use of the victim's consent would not serve to
eliminate any potential prejudice.5 See Berry v. Deloney, 28 F.3d 604 (7 th Cir.
1994) (trial court's repeated admonitions to jury that it could consider victim's
consent only as to damages sufficient to eliminate the need for bifurcation).
Second, if the trial court were to find the potential for prejudice too severe, it
could order bifurcation of the issues of liability and damages pursuant to
SCRCP, Rule 42(b). See Creighton v. ColigLiy Plaza Limited Partnership, 334
S.C. 96, 512 S.E.2d 510 (Ct. App. 1998).
In similar contexts courts have held a victim's willing participation is
relevant to her civil claim for damages, notwithstanding statutory provisions
negating the minor's ability to consent. See Parsons v. Parker, 170 S.E. 1, 2-3
(Va. 1933)(statute rendered minor incapable in law of consenting to sexual act
and defendant is liable in a civil suit for damages without regard to any
question of consent; however, proof that the female consented is admissible on
the quantum of damages); LK v. Reed, 631 So.2d 604 (La. 1994) (holding that
irrebuttable statutory presumption that minor could not consent to crime of
carnal knowledge can not fully invalidate minor's consent to sexual intercourse
in subsequent suit for damages; better analysis is to include principles of
comparative fault) ;6 Berry v. Deloney, supra (evidence concerning victim's prior
and subsequent abortions not barred by Rape Shield Statute since jury could
find it diminished amount of plaintiff s claimed damages for pain, suffering and
inadmissible for one purpose, is admissible for another and the jury is
instructed that it may consider the evidence only for the limited purpose for
which it was admitted. For example, a defendant's prior convictions are
generally not admissible to prove guilt of the crime for which the defendant is
on trial, but go only to credibility. See State v. Smalls, 260 S.C. 44, 194 S.E.2d
188 (1973) (evidence of the prior convictions could only be considered on the
issue of his credibility as a witness and not upon the question of guilt; court
found reversible error in refusal of trial court to so charge). See also SCRE,
Rule 609 (impeachment by evidence of conviction of crime); SCRE, Rule 105
(when evidence which is admissible as to one party or for one purpose but not
admissible as to another party or for another purpose is admitted, the court,
upon request, shall restrict the evidence to its proper scope and instruct the jury
accordingly); SCRE, Rule 407 (subsequent remedial measures).
6 The court in LK v. Reed found that the victim's consent could be vitiated
by such factors as her age, intellect, social skills, and family stress.
emotional injuries allegedly caused by victim's sexual relationship with her
school truant officer); Barton v. Bee Line, Inc., 265 N.Y.Supp. 284 (N.Y.
1933)(public policy would not be served by permitting victim to recover damages
for her willing participation in that against which the law sought to protect
As noted by the Court of Appeals, the rationale for these holding was
aptly stated in Barnes v. Barnes, 603 N.E.2d 1337, 1342 (Ind. 1992):
Unlike the victim in a criminal case, the plaintiff in a civil damage
action is "on trial" in the sense that he or she is an actual party
seeking affirmative relief from another party. Such plaintiff is a
voluntary participant, with strong financial incentive to shape the
evidence that determines the outcome. It is antithetical to
principles of fair trial that one party may seek recovery from
another based on evidence it selects while precluding opposing
relevant evidence on grounds of prejudice.7
Accord, LK v. Reed, supra (credibility of participants is an essential
determination in a civil suit for sexual assault). While Barnes involved
Indiana's Rape Shield Statute, we find the same underlying policy
considerations apply here.
In accordance with these authorities, we hold evidence of a victim's
willing participation or consent is admissible insofar as it pertains to a claim for
damages. To prohibit such evidence would effectually allow a victim to come in
and tell a one-sided version of events, without being subject to any real cross
examination or impeachment as to the damages actually suffered. Such a
result is untenable. Accordingly, we hold the Court of Appeals' properly held
District should have been permitted to introduce evidence of Doe's willing
who seeks to conceal evidence relevant to the claimed injury by invoking the
physician-patient privilege. "By placing one's mental or physical
condition in issue, a party has done an act which is so incompatible with an
invocation of the physician-patient privilege that the privilege is deemed
waived as to that condition." 603 N.E. 2d at 1343, citing Canfield v.
Dandock, 563 N.E.2d 526 (Ind. 1990)(emphasis supplied).
participation relevant to her damages.8
However, given our statutory and constitutional provisions, we agree with
Doe that the fact that she may have consented to the intercourse is simply
irrelevant for purposes of determining liability. Cases addressing similar
issues hold that a victim's willing participation is only admissible on the issue
of damages. See Parsons v. Parker, supra; LK v. Reed, supra. In holding
otherwise, the Court of Appeals essentially held consent could be a complete
defense to Doe's claim of negligent supervision. Given that §16-3-655(3)
applies to negate a victim's consent in both the criminal and civil context, Doe
v. Greenville, supra, we hold consent is not a defense in either context.
Accordingly, to the extent the Court of Appeals held evidence of Doe's consent
was admissible on the issue of District's liability, its opinion is modified, and
the matter remanded for a new trial.
We affirm the Court of Appeals' holding that evidence of a Victim's willing
participation in a sexual encounter is relevant in her subsequent civil suit for
damages.9 However, such evidence is limited to a victim's claim of damages,
and is not admissible on the issue of liability. Accordingly, the Court of Appeals'
opinion is modified to this extent it held evidence of Doe's consent was also
admissible on the issue of liability.
AFFIRMED AS MODIFIED.
FINNEY, C.J., TOAL, MOORE, and BURNETT, JJ., concur.
which evidence was admissible at trial, and decided whether the erroneous
exclusion required reversal. This issue was not raised in Doe's petition for
rehearing to the Court of Appeals and is therefore not preserved for review.
Anonymous v. State Bd. of Medical Examiners, 329 S.C. 371, 496 S.E.2d 17
(1998) (issue not ruled on by Court of Appeals and upon which rehearing is not
sought is not preserved for this Court's review). In any event, in reversing and
remanding for a new trial, it is inherent that the Court of Appeals found
exclusion of this testimony prejudicial to the defense. We agree.
9 As noted previously, it is within the trial court's discretion either to
instruct the jury as to the limited admissibility of such evidence, or to bifurcate
the trial on the issues of liability and damages.