Appeal from the United States District Court for the Central District of California. D.C. No. CV-92-7419-WMB. William M. Byrne, Jr., District Judge, Presiding.
Before: Robert R. Beezer, Melvin Brunetti, and John T. Noonan, Jr., Circuit Judges. Opinion by Judge Noonan.
Teri Lyons appeals the judgment of the district court in her civil rights action under 42 U.S.C. § 1983 against Maurice Moore, an officer of the Los Angeles Police Department (LAPD), the City of Los Angeles and seventeen officials of the city. The heart of her appeal is the argument that the burden of proof in a civil suit alleging rape should be on the defendant to prove consent. Rejecting this novel contention, we affirm the district court.
Lyons has been an officer of the LAPD since 1982. She had been engaged largely in narcotics work and in 1991 was a member of the DARE Division, where she taught the DARE anti-drug program to elementary and junior high school children and trained other DARE officers. Toward the end of 1991 and the beginning of 1992, she had difficulties with her supervisor, was forced out of the training team and was limited to teaching in the schools. During the same period she had problems with her husband, who was also an officer in the LAPD.
In this period, late 1991 to early January 1992, she began telephoning anonymously an assistant chief of police in the Operations Central Bureau of the LAPD. The primary topic of the calls was her concern about her career. In March 1992 one of her calls was intercepted by Maurice Moore, with whom she also discussed her career problems. Moore was a 33-year veteran of the LAPD with the rank of Commander. A week later Lyons called Moore again and told him that her aunt and uncle knew him and that he might guess who she was. She then talked to him about her marital problems. Moore encouraged her to see the LAPD psychiatrist. Lyons called Moore a third time. Moore told her that he would feel more comfortable talking to her in person at his apartment. She got his home telephone number from her aunt.
By mutual agreement, after work on the evening of March 31, 1992, Lyons met Moore at his apartment building and accompanied him to the living room of his apartment. He discussed the problems he was having with his wife, from whom he was separated. She discussed her marital problems. After some period of conversation they entered Moore's bedroom and engaged in sexual intercourse. After Lyons left the apartment they never had a conversation again. The next day, however, Moore left the name and number of a family counselor on Lyons's voice mail. According to Moore, Lyons left six messages on Moore's recorder, each stating, "I was thinking about you" or words to that effect.
In April 1992, Lyons again telephoned the assistant police chief at the Operations Control Bureau and talked anonymously with him about her career and her marital problems. This officer was Moore's superior, but she did not mention Moore. In November 1992, she again telephoned the assistant police chief, revealed her name, and asked if they could meet. No meeting, in fact, took place, and no mention was made of Moore. Later in the month Lyons told a field supervisor in the DARE Division that she was under stress, that she was dissatisfied with her job, and that Moore had taken advantage of her vulnerability and that she felt like she had been raped. This conversation was reported to the supervisor's superior. The same day she was interviewed on the subject of the alleged rape at a police station. The LAPD then investigated her allegations. Moore admitted that he and Lyons had engaged in intercourse but denied that he had raped her.
On December 17, 1992, Lyons filed a complaint in federal court alleging in count 1 that, in violation of the Fourth Amendment as incorporated by the Fourteenth Amendment, she had been subjected to the use of excessive force by Moore; in count 2 that she had been deprived of her rights to due process; and in count 3 that she had been "physically raped and thereby illegally assaulted and battered." She sought general damages in the sum of $10 million and punitive damages in the sum of $10 million. Named as defendants were Moore, the City of Los Angeles and seventeen officials of the City of Los Angeles who were alleged to have taken no action to investigate the reported rape or to discipline Moore.
The district court bifurcated the action and permitted the case against Moore and the city to go to a jury trial that lasted five days. In addition to her own testimony that she had not consented to intercourse, Lyons presented as witnesses Moore, who was adverse, and, as an expert witness, Kathleen M. Bartle-Schulweis. Bartle-Schulweis had a bachelor's and master's degree in sociology from the University of California at Los Angeles and a degree in business from the University of Southern California. At the time of trial she was finishing a doctoral dissertation at UCLA on the subject of sexual harassment. She held a certificate from the Rosa Parks Sexual Assault Crisis Center, certifying that she had participated in a one week course in rape counselling. She testified that she had "worked with over 400 rape survivors," that is, persons saying that they had been raped. Bartle-Schulweis assumed that the persons complaining to her were telling the truth. She had never done any studies as to the false reporting of rape. She had published no scholarly study on acquaintance rape or rape in general. She was not a psychologist. The defense challenged her qualifications to be an expert in the case. The court observed that her qualifications were "minimal," but agreed that she could testify as an expert to reluctance and delay in reporting acquaintance rape.
Lyons sought to obtain Bartle-Schulweis's answers to 142 questions relating chiefly to the reaction of rape victims to the trauma they had undergone. The court found only two of these questions to be relevant and within Bartle-Schulweis's expertise and permitted these questions only. The principal question permitted was: whether women who were the victims of acquaintance rape are more likely to make delayed ...