M.L. v. S.N.
GLAD submitted an amicus letter to the Commonwealth of Massachusetts Appeals Court addressing the admissibility of explicit sexual photographs in a suit brought by a man against his former romantic partner for intentional infliction of emotional distress and battery.
The judge at trial had allowed the defendant to admit into evidence a series of nude and explicitly sexual photographs of the plaintiff from a photo spread in a gay male magazine.
GLAD argued in our letter that “sexual images are generally understood to inherently qualify as inflammatory.” Further, we asserted that such prejudicial effect is compounded here by continuing societal prejudice against gay male sexuality.
The Court of Appeals – in a ruling that is a public document but not an official published opinion citable in other cases – agreed with our position that the photographs should not have been admitted:
We have little doubt that the failure to allow the plaintiff’s motion to exclude these photographs was error. Although the Massachusetts rape shield statute, G. L. c. 233, § 21B, by its terms does not apply in this civil context, the principles that it articulates are also embodied in our rule that evidence may be excluded where its potential for unfair prejudice outweighs its probative value.
and further agreed that societal prejudice against gay male sexuality likely swayed the jury against the plaintiff at trial:
As amicus explains, sexually explicit images such as the ones at issue here “inherently have a prejudicial effect and . . . the risk was great that the photographs unduly swayed the jury. . . . Such inherently prejudicial effect is only compounded in this case by society’s deep, psychological prejudice and disgust regarding gay male sexuality.”
We think all would agree that evidence of a nude or partially nude photographic spread showing a young woman, for example in Playboy magazine, would not be admissible as evidence in a trial in which she alleged that her boyfriend years later degraded her and intentionally inflicted emotional distress by forcibly removing her clothing in public and exposing her breasts or genitals. A failure to recognize that the photographs at issue here are the same as those in the hypothetical case may be attributable to prejudice concerning the difference between same sex and opposite sex couples that has no place in the law of our Commonwealth.
A technical issue concerning the proper court procedures regarding objections to the admission of evidence resulted in the Appeals Court deeming the objection in this case waived on appeal.
Nevertheless the Court has made an important statement here in asserting that explicit photographs are equally (if not more so) inflammatory and prejudicial (and therefore inadmissible) in a case involving a gay man as they would be in a case involving heterosexual individuals – and in further recognizing that implicit bias present in societal attitudes toward gay male sexuality may unduly sway a jury, particularly when sexual imagery is introduced in the courtroom.
GLAD got involved in this case to “uncover” the implicit double standard that seemed clear to us (but not to an otherwise careful and conscientious judge) and to call out our legal system when it fails to see prejudicial stereotypes in play. We are very pleased at how the Appeals Court recognized and addressed the issue.