- Associated Press - Friday, September 19, 2014

OMAHA, Neb. (AP) - The Nebraska Supreme Court on Friday ordered a new trial for a Lincoln man convicted of attempted sexual assault, saying the trial judge wrongly applied the state’s rape shield law in refusing to allow a defense attorney to question the alleged victim about her relationship with another woman.

The unanimous decision came in the case of Curtis Lavalleur, who appealed his 2013 conviction and two-to-three-year prison sentence for attempted first-degree sexual assault.

Court records show Lavalleur and the woman he’s accused of assaulting were co-workers who socialized outside of work as friends.

In August 2012, the woman called Lavalleur to say she had been locked out of her apartment, both testified. The two went to his residence, where they drank alcohol before the woman went to sleep in a bed in Lavalleur’s basement, asking him to stay in the basement with her because she didn’t want to be alone.

She testified that upon awaking the next morning, she was naked from the waist down, as was Lavalleur, who was lying next to her. She said she remembered nothing after getting in the bed.

Lavalleur testified that the woman was awake and had not dissuaded him when he removed her shorts, and that she had not tried to stop him when he fondled her, but that she told him “no” more than once when he attempted to have sex with her. Lavalleur testified that he had not had sexual intercourse with her, and a sexual assault test kit found no evidence of intercourse.

At trial, Lavalleur’s attorney sought to cross-examine the woman about her relationship with another woman, saying he wanted to establish a motive for her to falsely report that she had not consented to sexual activities with Lavalleur. The attorney said he would not question the woman about her sexual conduct, but might ask whether the relationship with the other woman was intimate.

The judge rejected the request, citing Nebraska’s rape shield law, which - with certain exceptions - prohibits using the sexual history of an alleged rape victim to attack her credibility.

On appeal, Lavalleur argued that evidence of an intimate relationship, by itself, is not within the scope of Nebraska’s rape shield law, and the high court agreed.

“It is not improbable that (the woman’s) absence from her apartment on the night of Aug. 17, 2012, was noticed and that she would eventually have to explain her whereabouts,” Justice William Connolly wrote for the court. “A report of sexual assault would have helped dispel any air of infidelity.”

Connolly added: “Whether Lavalleur’s theory was credible is for the jury.”

Public defender Webb Bancroft, who represented Lavalleur on appeal, said he’s glad to have another opportunity to plead his client’s case. The Nebraska Attorney General’s Office did not immediately return a message Friday seeking comment.

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