THE STATE OF SOUTH CAROLINA

In The Supreme Court

Jane Doe, by her

Guardian ad Litem,

Mary Roe, and Mary

Roe, individually, Petitioners,

v.

Orangeburg County

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.

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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.

FACTS

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.

ISSUE ²

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

statements .

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

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Did the Court of Appeals err in holding District should have been

permitted to introduce evidence of Victim's alleged consent?

DISCUSSION

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.

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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.

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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

her).

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).

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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.

CONCLUSION

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.

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